Fingal County councillors did not comply with their obligation to consider only planning matters when zoning a site owned by the operator of Dublin Airport, the High Court has found.
Mr Justice Richard Humphreys struck down the “community infrastructure” zoning objective councillors assigned to the land following a council meeting in February 2023.
The judge warned that elected members, in considering land zoning issues, “need to be aware, and ideally reminded by officials, dubious comments should be ideally identified and withdrawn”.
He said courts must be realistic about how much absolute discipline there will be in comments from an elected assembly. Some dubious or inappropriate comments at the margin should not be exaggerated as being central to a planning decision, he said.
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However, there were too many of non-peripheral “personal” contributions in this instance, he said.
The DAA-owned site contains a long-established sports complex, which is used by airport staff and the community and operated by a non-profit organisation called ALSAA.
The Fingal councillors changed the site zoning which prescribes the intended land use from “Dublin Airport” to “community infrastructure”. The former objective aims to facilitate air transport infrastructure and airport related activities, while the latter guides a site for community facilities or spaces.
The DAA wanted the site to be rezoned as “Dublin Airport”.
Ruling on the DAA’s case against the council, Mr Justice Humphreys held that the lands will be treated as unzoned until the Fingal County Council development plan is varied to adopt an objective for its use.
The DAA, represented by senior barristers Fintan Valentine and Aoife Carroll, instructed by Eversheds, alleged Fingal County Council elected members acted beyond their powers by being motivated by considerations other than that of the proper planning and sustainable development of the area, as required by the 2000 Planning and Development Act.
It contended that the record of a February 2023 council meeting demonstrates that the members were driven by a desire to “help” the sport complex operator, ALSAA, and by a feeling that “messages need to be sent to the DAA”.
The airport authority included councillors’ statements about “supporting” ALSAA to get it “ready for the next stage when the DAA are going to come along and try to take that building off them”.
Mr Justice Humphreys found the members went “outside the stated planning rationale” during the February 2023 meeting.
Among the statements made were: “The people in ALSAA want this zoning and they are looking for it” and “There is the animal in the room where the DAA have been trying to make life very difficult for ALSAA”. Another councillor said: “I have been asked by ALSAA members and the people that run that ALSAA complex to support them and I just want them to know that I am supporting them”.
The judge said some of the members’ comments are “relevant to a degree”, such as wanting to preserve the site’s existing use. However, some of the statements place reliance on supporting a particular occupier in its dispute. Land use objectives concern a “particular use, not supporting a particular user, or indeed about sending a message to a particular landowner”, the judge said.
Mr Justice Humphreys noted no elected member wants a transcript of their remarks pored over in a courtroom, but he said this procedure follows Supreme Court precedent.
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