Summary of Judgment — Judge Humphreys

Factual and Procedural Background

The Applicants challenged the Respondent's adoption (22 February 2023) of a county development plan for the period 2023–2029 insofar as it (i) changed the zoning of parts of the Applicants' lands at Fosterstown from "RA - Residential Area" to "OS - Open Space" and (ii) adopted a map-based density objective (material amendment PA SH 8.5 / map-based objective no. 38) setting density at 110–115 dwellings per hectare. The lands lie within the Respondent's functional area. The Fosterstown masterplan had been made by the Respondent in May 2019 and contains green-infrastructure and built-form objectives, including a net density figure of 105–115 units/ha.

Draft CDP provisions proposing the zoning change and the map-based objective were published in February 2022. The Applicants made submissions seeking retention of residential zoning and later objected to the proposed material alteration PA SH 8.5. The chief executive recommended against the material alteration but the elected members resolved to adopt the material alteration and to make the plan incorporating both the zoning change and the map-based objective. The development plan took effect on 5 April 2023.

The Applicants obtained leave to apply for judicial review. Proceedings commenced 14 April 2023, litigation progressed through adjournments and interlocutory steps, and the substantive hearing was held on 22 April 2026. A draft judgment was circulated to parties on 28 April 2026. The court delivered judgment dismissing the proceedings on 8 May 2026.

Legal Issues Presented

1. Whether the Respondent's change of zoning from "RA - Residential Area" to "OS - Open Space" for parts of the Applicants' lands breached the Development Plans: Guidelines for Planning Authorities (June 2022) and sections 28(1A) and 28(1B) of the Planning and Development Act 2000 by failing to have regard to the guidelines or to state how they were implemented.
2. Whether the adoption of map-based objective no. 38 (PA SH 8.5) adopting a density range of 110–115 dwellings/ha was inconsistent with ministerial guidelines (including the Sustainable Residential Development Guidelines and the Apartment Guidelines) and therefore unlawful under sections 28(1A)/(1B).
3. Whether the adoption of the map-based objective (PA SH 8.5) involved a failure to consider the proper planning and sustainable development of the area (s.12(11)) or involved the taking into account of extraneous/non-planning considerations by elected members.
4. Whether the map-based objective unlawfully discriminated against the Applicants or was irrational in applying different reasoning to factually similar situations.

Arguments of the Parties

Applicants' Arguments

• The change from RA to OS constituted unlawful "de‑zoning" contrary to ministerial guidance and the Respondent failed to comply with s.28(1A)/(1B) by not properly considering or explaining how the Development Plan Guidelines had been implemented in respect of land said to be "serviced and developable".
• The map-based objective imposing a density cap was inconsistent with relevant guidelines that support higher densities in accessible locations, and the Respondent failed to explain why those guidelines could not be implemented.
• The elected members took account of extraneous or non‑planning considerations during debate (citing particular remarks by an elected member) and applied inconsistent reasoning to similar cases, thereby acting irrationally and discriminatorily.
• Sought certiorari to quash the zoning change and the map-based objective and, if necessary, mandamus to require the plan to be made without those elements; alternatively declarations and costs.

Respondent's Arguments

• The Respondent had regard to and implemented the Ministerial Guidelines; Appendix 2 to the CDP sets out implementation and the development plan throughout reflects guideline policies, including open space provision and masterplan implementation.
• The term "de‑zoning" in the guidelines contemplates wholesale removal of residential zoning and does not apply to zoning refinements that secure open space within an overall residentially zoned site; the change here aligned the zoning with the Fosterstown masterplan.
• The duty in s.28(1A) is a "have regard to" duty; s.28(1B) was satisfied by the statement appended to the CDP and the wider record; the obligation did not require an exhaustive, site‑by‑site narrative of how every guideline sentence was applied.
• The map‑based objective was consistent with the masterplan and in substance was not less favourable to the Applicants; elected members' remarks cited by the Applicants were legitimate planning discourse and not extraneous considerations; no unlawful discrimination or irrationality was shown.

Table of Precedents Cited

Court's Reasoning and Analysis

The court structured its analysis under two broad headings: the zoning challenge and the map‑based objective challenge.

Zoning challenge (core ground 1)

• The court accepted that s.28(1A)/(1B) imposes a statutory obligation to have regard to ministerial guidelines and to append a statement. However, it emphasised that the duty to "have regard to" is not a demanding standard and that the statutory statement obligation must be workable in practice.
• Appendix 2 of the CDP contained a statement that the plan "implements the policies and objectives of these Guidelines throughout" and identified where the guidelines were addressed. The court held that given the scale and scope of ministerial guidance (many pages and multiple guidelines), an exhaustive, site‑by‑site narrative of "how" each guideline clause was implemented would be unworkable and that a process‑based explanation satisfied the statutory requirement.
• The court analysed the text of the Development Plan Guidelines and concluded that the term "de‑zoning" as used in the guidelines contemplates wholesale removal of residential zoning; it did not cover the present situation where green corridors/open‑space elements within an overall residential site were specifically zoned OS while the site remained principally residential. The zoning change was consistent with the Fosterstown masterplan's express green‑infrastructure objectives and with the CDP's provisions implementing masterplans.
• Accordingly, no breach of s.28(1A)/(1B) or unlawful de‑zoning was made out and certiorari would not lie to quash the zoning decision.

Map‑based objective challenge (core grounds 4–6)

• The court found Appendix 2 shows the relevant density and apartment guidance were considered; the "have regard to" obligation was discharged. The map‑based objective mirrored the masterplan density (masterplan net density 105–115 u/ha; map objective 110–115 u/ha) and was, if anything, slightly more favourable to the Applicants.
• The court considered that the Applicants had not identified any clear breach of the cited guidelines by the CDP. The guidelines themselves allow a range of densities in appropriate, accessible suburban locations and the adopted density fell within the policy bandwidth described in the guidelines and masterplan approach.
• On the allegation that elected members took extraneous considerations into account, the court applied the principle that a decision should be read as valid if a valid reading is available. The remarks of the elected member were read as legitimate planning discourse about developer behaviour generally and the need to secure plan‑led outcomes; they did not constitute impermissible personalization or extraneous matters centrally undermining the decision.
• The discrimination/irrationality complaint failed because the situations relied upon were not shown to be factually identical; moreover the amendment effectively made explicit on the map what the plan already committed to via masterplan implementation.

The court repeatedly emphasised the limited role of the judiciary in assessing planning judgments that involve evaluative balancing of competing policy objectives and practical constraints. Where the decision‑making record and plan text demonstrate consideration of guidelines and a coherent planning rationale tied to an adopted masterplan, judicial intervention was inappropriate.

Holding and Implications

HOLDING: It is ordered that the proceedings be DISMISSED.

Implications:

• The court dismissed the Applicants' claim for certiorari and related relief regarding both the zoning change and the map‑based objective.
• The court directed that the order include a recital confirming that the development plan incorporates masterplan densities and that the impugned map‑based objective is not less favourable to the Applicants than the density that would otherwise apply by virtue of the masterplan.
• The decision confirms the court's reluctance to substitute its own planning judgment for that of elected members where (i) the statutory "have regard to" duty has been discharged, (ii) the decision reflects an adopted masterplan, and (iii) no clear legal error, illegality or relevant non‑planning consideration central to the decision has been shown. The judgment does not purport to establish novel legal principles beyond application of existing authorities and the statutory framework; its immediate practical effect is to leave the CDP provisions in place as adopted.