Kenny v Roscommon County Council (Approved)

Factual and Procedural Background

This opinion concerns a contested leave application brought by the Plaintiff, a lay-litigant, seeking leave to challenge variations made to the Roscommon County Development Plan 2014–2020 (“RCDP”) and the Monksland/Bellanamullia Local Area Plan 2016–2022 (“MBLAP 2016”). The Plaintiff’s principal grievance relates to the rezoning of his lands under MBLAP 2016 from “district centre” to “new residential” and “unzoned,” which adversely affected his planning applications. The Plaintiff alleges that the variations were unlawful, asserting that the Athlone Joint Retail Strategy (“AJRS”) was improperly “retrofitted” into the plans after their adoption, thereby validating flawed planning instruments. The Respondent denies any procedural irregularity or substantive unlawfulness in the adoption of the variations and submits that the Plaintiff’s challenge is a collateral attack on MBLAP 2016 itself, which is out of time. The application was supported by multiple affidavits and extensive documentary evidence, and the Respondent relied on a detailed affidavit by a Senior Planner outlining the statutory compliance of the variation process.

Legal Issues Presented

1. Whether the Plaintiff has established an arguable case that the variations to the RCDP and MBLAP 2016 were unlawful in content or adoption procedure.
2. Whether the Plaintiff’s challenge to the variations is a collateral attack on the underlying MBLAP 2016, which is out of time for judicial review.
3. Whether any alleged conflict of interest existed among the members of the committee who adopted the variations.
4. Whether the sequence and timing of adoption of the AJRS and the local area plan complied with planning law and guidelines.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contends that MBLAP 2016 was unlawfully adopted without a retail strategy in place, and that the AJRS was improperly “retrofitted” into the plans through the variations to validate a flawed local area plan.
• He complains that the rezoning of his lands from “district centre” to “new residential” (Monksland) and “unzoned” (Bogganfin) was unfair and contrary to proper planning guidelines and the Planning and Development Acts.
• The Plaintiff alleges procedural irregularities and breaches of statutory requirements in adopting the variations, including failure to consider his submissions adequately.
• He raises concerns about inaccuracies in population growth projections underpinning MBLAP 2016.
• The Plaintiff asserts a conflict of interest by members of the committee, particularly the chairman who was an auctioneer with extensive local practice.
• He maintains that the AJRS is a flawed document, prepared ad hoc to circumvent legal defects in MBLAP 2016, lacking proper assessment of retail development impacts and planning cohesion.
• The Plaintiff submits that the variations were adopted unlawfully and that the court should grant leave to challenge them despite the underlying plan being out of time for challenge.

Respondent's Arguments

• The Respondent submits that the application is a collateral attack on MBLAP 2016, which the Plaintiff is time-barred from challenging, and that the variations themselves do not affect the rezoning complained of.
• It is asserted that the variation process complied fully with statutory requirements, including public notice, consultation, consideration of submissions, and formal adoption by the municipal district committee.
• The Respondent contends that no procedural irregularity or infirmity occurred in adopting the variations, as evidenced by the detailed affidavit of the Senior Planner.
• It is argued that the Plaintiff’s allegations of conflict of interest lack evidential foundation, and that local councillors are routinely engaged in matters concerning their local area.
• The Respondent defends the timing and sequence of the AJRS and MBLAP 2016 adoption, noting the necessity to adopt a new local area plan in 2016 despite the retail strategy only being formulated later.
• The Respondent relies on the established legal test for leave to seek judicial review, emphasizing the absence of an arguable case by the Plaintiff.
• It is submitted that even if the variations were quashed, the Plaintiff would not gain any practical relief as the rezoning under MBLAP 2016 would remain unaffected.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a careful review of the Plaintiff’s multiple affidavits and voluminous exhibits, recognizing the Plaintiff’s lay status but focusing strictly on the legal sufficiency of his claims. The court identified that the Plaintiff’s principal grievance concerned the rezoning of his lands under MBLAP 2016, a challenge he failed to bring within the statutory time limit and which had already been unsuccessfully litigated in prior proceedings.

Despite the Plaintiff’s attempt to frame the challenge as concerning the 2019 variations to RCDP and MBLAP 2016, the court found this to be a collateral attack on the underlying local area plan itself. The court emphasized that it must assess whether the Plaintiff has shown an arguable case that the variations were unlawful in content or adoption procedure, independent of the Plaintiff’s motives.

The affidavit of the Senior Planner for the Respondent demonstrated that all statutory procedures for the variations were properly followed, including public notification, consultation, consideration of submissions, and formal adoption by the relevant committee. The court found no procedural irregularity or infirmity.

The court rejected the Plaintiff’s allegations of conflict of interest as unsupported by evidence, noting that local councillors commonly have local connections and that no credible basis for disqualification was shown.

Regarding the Plaintiff’s argument that the AJRS should have preceded MBLAP 2016, the court reasoned that the Respondent was obliged to adopt a new local area plan in 2016 upon expiry of the previous plan and that the subsequent adoption of the AJRS and its incorporation through variations was lawful and appropriate.

The court further noted that even if the variations were unlawful, quashing them would not redress the Plaintiff’s zoning complaints, as the rezoning was effected in MBLAP 2016 itself.

In sum, the court concluded that the Plaintiff had not demonstrated an arguable case that the variations were unlawful in content or procedure, nor that he was entitled to the relief sought.

Holding and Implications

The court REFUSED the Plaintiff leave to seek judicial review of the variations made to the Roscommon County Development Plan 2014–2020 and the Monksland/Bellanamullia Local Area Plan 2016–2022.

The direct effect of this decision is that the Plaintiff’s challenge to the 2019 variations is dismissed and no relief is granted. The ruling confirms that the Plaintiff is out of time to challenge the underlying 2016 local area plan and that the statutory procedures for the variations were properly followed. No new precedent was established by this judgment.