Sister Mary Christian & Ors v Dublin City Council

Factual and Procedural Background

This opinion supplements a main judgment delivered on 27th April 2012 concerning a judicial review challenge to the adoption of a city development plan by a municipal council. The applicants, a group of religious sisters collectively referred to as the Sisters of Charity, challenged the inclusion of zoning designation Z15 in the Dublin City Development Plan 2011-2017 adopted by the respondent, Dublin City Council. Following the main judgment, the court invited submissions on the appropriate form of order and costs. A further hearing was held on 15th June 2012 to resolve outstanding issues relating to the final order and costs.

Legal Issues Presented

1. Whether the court should quash the decision of the municipal council adopting the development plan insofar as it includes zoning Z15 and all references thereto.
2. The precise scope of deletions required in the development plan, particularly concerning paragraph 15.2.
3. Whether one or two orders of certiorari should be made—one quashing the decision to adopt the plan and one quashing the plan itself.
4. Whether a declaratory order should be made clarifying the zoning status of lands formerly zoned Z15.
5. The appropriate procedural mechanism for referring the matter back to the elected members for reconsideration—whether by variation under section 13 of the Planning and Development Act 2000 or by remittal to an earlier stage in the adoption process.
6. The proper allocation of costs between the parties, including consideration of a discrete constitutional challenge raised but unsuccessful.

Arguments of the Parties

Applicants' Arguments (Sisters of Charity)

• Proposed an order of certiorari quashing the decision to adopt the development plan insofar as it includes zoning Z15 and quashing the relevant parts of the plan itself.
• Sought a declaration that lands formerly zoned Z15 currently have no zoning.
• Requested an order of mandamus directing the respondent to make necessary variations to the development plan under section 13 of the Planning and Development Act 2000 to address the zoning of these lands in accordance with the court's main judgment.
• Argued that paragraph 15.2 of the plan should be deleted in its entirety because it only serves to justify the now-quashed Z15 zoning.
• Advocated for two separate orders of certiorari to clarify the legal effect on both the decision and the plan document.

Respondent's Arguments (Dublin City Council)

• Proposed a single order of certiorari quashing the decision to adopt the plan insofar as it includes zoning Z15.
• Suggested remitting the decision back to the stage of consideration of the Manager's Report on submissions on the draft plan for further consideration by elected members, rather than mandating a variation under section 13.
• Contended that only a portion of paragraph 15.2 should be deleted, specifically the parts expressly referencing Z15 zoning, to maintain the integrity of the "Challenges" section of the plan.
• Did not dispute that lands formerly zoned Z15 would currently have no zoning following quashing but submitted that a declaratory order was unnecessary or inappropriate.
• Conceded that some costs should be awarded to the applicants but disputed entitlement to full costs, especially given the unsuccessful constitutional challenge based on Article 44 of the Constitution.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the technical issues concerning the form of the order. It found that paragraph 15.2 of the development plan, titled "Challenges," contained bullet points reflecting broader issues beyond just justification for Z15 zoning. Therefore, only the specific references to Z15 zoning within that paragraph should be deleted, as agreed by the respondent, while the remainder should remain to preserve logical coherence.

Regarding the number of orders of certiorari, the court preferred two separate orders: one quashing the decision to adopt the plan insofar as it includes Z15 zoning, and another quashing the relevant parts of the development plan itself. This approach clarified the legal effect on both the decision-making process and the public document.

The court agreed that a declaratory order was appropriate to clarify that lands formerly zoned Z15 currently have no zoning following the quashing, but tailored the wording to reflect that such lands remain unzoned unless and until the council adopts changes in accordance with the court's directions.

The most substantive issue concerned the procedural mechanism for referring the matter back to the elected members. The court analyzed the statutory development plan process under the Planning and Development Act 2000, distinguishing between variations under section 13 and amendments under section 12.

The court reasoned that a simple order mandating a variation under section 13 would be unnecessary and potentially problematic, as the council already had the statutory authority to vary the plan. Instead, the matter should be remitted back to the elected members as part of the original development plan adoption process, not treated as a variation post-adoption.

Drawing on the precedent in Tristor Ltd v. Minister for the Environment, the court emphasized that the remedy should undo only the invalid aspects and allow the lawful process to continue from the point where it went wrong. It rejected restarting the entire process, favoring a remittal that respects the integrity of the valid procedural steps already taken.

The court outlined a three-stage process for the elected members post-remittal: (i) convene a meeting to decide on zoning proposals for the formerly Z15 lands and specify reasons; (ii) conduct a public consultation period of six weeks on the proposals; and (iii) hold a final meeting to consider submissions, receive a Manager's report, and adopt final provisions. The court directed that any material amendments arising from consultation be subject to statutory procedures analogous to those in section 12.

The court also clarified that only changes necessary to address the de-zoning of Z15 lands are permitted under this process; other changes require separate variation procedures under section 13.

Regarding costs, the court accepted that the applicants had succeeded significantly and were entitled to costs. It rejected the respondent's contention that the failure to decide certain issues should reduce costs, noting that such failure resulted from the respondent's inadequate reasons. However, the court allowed a modest deduction of €15,000 to reflect the applicants' unsuccessful constitutional claim and the additional costs incurred in defending that issue.

Holding and Implications

The court's final decision was to make two separate orders of certiorari quashing the decision to adopt the development plan insofar as it includes zoning Z15 and quashing the relevant parts of the plan itself, including specified deletions in paragraph 15.2.

A declaratory order was made clarifying that the lands formerly zoned Z15 currently have no zoning unless and until the council adopts changes in accordance with the court's directions.

The court ordered that the matter be remitted back to the elected members for further consideration as part of the original development plan adoption process, not as a variation under section 13. The court prescribed a structured three-step process involving an initial meeting to decide zoning proposals, a public consultation period, and a final meeting to adopt provisions, with statutory safeguards for material amendments.

Costs were awarded to the applicants with a modest deduction of €15,000 to reflect the unsuccessful constitutional challenge. No new precedent was set beyond the application of established principles regarding remittal, judicial review remedies, and costs allocation.