H163 Sister Mary Christian & Ors -v- Dublin City Council [2012] IEHC 163 (27 April 2012)

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Judgment Title: Sister Mary Christian & Ors -v- Dublin City Council

Neutral Citation: 2012 IEHC 163

High Court Record Number: 2011 56JR

Date of Delivery: 27/04/2012

Court: High Court

Composition of Court:

Judgment by: Clarke J.

Status of Judgment: Approved

Neutral Citation 2012 [IEHC] 163

[2011 No. 56 J.R.]





JUDGMENT of Mr. Justice Clarke delivered on the 27th April, 2012

1. Introduction
1.1 Development plans play an important role in the planning process. The making of development plans by each planning authority can give rise to political controversy for the simple reason that the content of the plan is decided by the elected members (as that term is defined under s. 11(5)(a) of the Local Government Act 2001). Likewise, once adopted a development plan forms the basis against which all planning applications are to be considered. Development plans have, under the Planning and Development Act 2000 (as amended) ("the 2000 Act"), a lifetime of six years. Subject to amendment or the material contravention procedures available, all planning permissions must comply with the development plan during its currency.

1.2 The current Dublin City Development Plan ("the Development Plan") was adopted on 24th November, 2010, and is expressed to run from 2011 to 2017. It is, as might be expected, a lengthy and detailed document. It is not, of course, the first such plan and follows on from a sequence of previous plans. Each successive version of the development plan contains changes presumably designed to meet new conditions and prevailing views. One new feature (although, as will become clear, there is some dispute about just how different from what went before it may be) of the current plan is the creation of a form of zoning (designated Zone Z15) which had no exact counterpart, at a minimum, in previous plans. This zoning is described in the plan as being "to provide for institutional, educational, recreational, community, green infrastructure and health uses". A significant amount of the land contained within that zoning is owned by religious institutions. The applicants ("the Sisters of Charity" or "the Sisters") are representatives of the religious order bearing that name. A significant amount of land owned by the Sisters of Charity comes within Z15 zoning. It is said by the Sisters of Charity that the relevant zoning is likely to have a significant detrimental effect on the value of the relevant properties. While that fact, of itself, of course, is a feature of many types of zoning, nonetheless the Sisters of Charity assert that, on a number of different bases, the zoning attached to their lands is unlawful. The Sisters of Charity bring these proceedings against the respondent ("Dublin City Council" or simply "the Council") with a view to seeking judicial review of the current Dublin City Development Plan or at least those aspects of it which are said to be unlawful.

1.3 As will be seen, these proceedings raise some very broad though important questions relating to the interaction between development plans and property rights guaranteed under the Constitution, on the one hand, or, as a result of Ireland's obligations under the European Convention on Human Rights ("ECHR"), on the other. In addition, the proceedings raise broad issues concerning the process by which a development plan is formulated by particular reference to the question of whether, and if so to what extent, and, indeed, in what manner, elected members are required to give reasons for their decisions.

1.4 In addition, questions are raised deriving from traditional judicial review grounds as to whether those aspects of the plan about which the Sisters of Charity complain can be said to be irrational, in the sense in which that term is used in the judicial review jurisprudence, or otherwise fail the ordinary test for the exercise of legally delegated powers. Finally, there are a series of more technical issues relating to matters such as standing to which it will be necessary to refer in due course.

1.5 As even that brief synopsis demonstrates, these proceedings involve a very wide range of issues. In order to explain more fully the questions to which this judgment is directed, I propose to turn, therefore, to a more detailed consideration of the issues which anse.

2. The Issues
2.1 When opening the case for the Sisters of Charity, counsel handed into court a list often issues which were tentatively put forward as representing the areas of dispute between the parties which were said to emerge from the papers filed in court. Those matters came to be refined in the course of the argument. When it came towards the end of his reply, counsel for Dublin City Council also handed in a separate list of some 18 issues which were said to arise. That latter list contained, sometimes with adaptation, the issues originally proposed on behalf of the Sisters of Charity. Some issues were added or original issues were broken into two or more matters in the light of the precise controversy that emerged between the parties at the hearing. Be that as it may, it seems to me that a convenient point from which to define the issues which require to be addressed is the list as presented on behalf of Dublin City Council.

2.2 I propose, therefore, to set out those issues in full. They are as follows:-

      1. What locus standi have the Applicants to challenge the Development Plan:-

        (a) without having yet sought any Planning Permission to develop their lands on foot of same? or,

        (b) by relying on Z15 zoning of the lands of other religious orders?

        (c) in terms of their issue specific locus standi.

      2. Are the Applicants entitled to rely on material which was not generated or presented before the Elected Members prior to the making of the Development Plan?

      3. Is there a legal requirement to give reasons in connection with the changes introduced by Motion of the Elected Members?

      4. If the answer to 2 is yes, is Chapter 15 of the Respondent's Development Plan and/or the Z15 zoning invalid by reason of:-

        (a) the Councillors' failure to state any reasons for the removal of "residential" as an "open for consideration" use?

        (b) the Councillors' failure to state any reasons for introducing into Chapter 15.2 a non-evidence based distinction between areas based on their capacity for school and hospital places?

      5. If the answer to 2 is no, what is the evidence upon which the decisions under challenge are based and is the Respondent (entitled] to make its decision on this basis?

      [Evidential research at a strategic level rather than type of detail used in LAP (Rosemary Gibbons)]

      6. Is the basis for "qualification" under Z12 or Z15 so uncertain as to be void?

      7. Is the basis for the exceptions under Z15 so uncertain as to render the provisions arbitrary in terms of their effects?

      8. Is Z15 zoning invalid by reason of the purported imposition of a 20% minimum for Social and Affording Housing for any development?

      10. Are the Applicants entitled to challenge the Plan on the basis that it imposes a restriction on their right to develop their lands with the consequent impact on the value of their lands, or must they wait until an application for Planning Permission is made and refused?

      11. Does the Planning Code envisage or enable restrictions on development of the kind imposed by Z15 by reference to "institutional, educational, recreational, community, green infrastructure and health uses"?

      12. Have the Applicants discharged the onus of proof resting on them to show irrationality or lack of proportionality in the making of the Development Plan?

      13. Is the Plan an unconstitutional delimitation of the Applicants' property rights, under Articles 40.3, 43 and 44.2.5 of the Constitution, and/or unreasonable and therefore ultra vires by reason of/having regard to all or any of the following:-

        (i) the extent of the restrictions entailed by the zoning;

        (ii) the justification for the zoning;

        (iii) the evidence (or lack thereof) that was before the Respondent when it formulated the zoning;

        (iv) the specificity of the criteria by reference to which development will be permitted;

        (v) the content and application of Zl5 zoning;

        (vi) the criteria used to decide which properties would be so zoned;

        (vii) the manner in which other like positioned properties have been handled?

      14. In considering the proportionality of the impugned decisions, is it necessary for the court to apply the least restrictive alternative test?

      15. In relation to a requirement that [aJ zoning decision be "evidence based" does this require a quantitative/mathematical approach to the question of need?

      16. Having regard to the nature and extent of the restrictions on the use of the lands entailed by Z15, is that zoning of the Applicants' lands a diversion of religious property within the meaning of Article 44.2.6 of the Constitution?

      17. Having regard to the proportion of religious owned lands zoned Zl5 and the justification for that proportion and/or rationale for the zoning of lands by the Respondent, is the zoning unconstitutional, in breach of lreland's obligations under the ECHR and/or unreasonable by reason of discrimination against the religious owners of lands?

      18. On the grounds of discretion are the Applicants' disentitled to relief sought?

2.3 In order to approach the very wide range of issues identified in a proper manner, it seems to me that I should attempt to group the issues into those which raise like or connected questions. I, therefore, propose to approach the issues under the following broad headings and in the following order:-
      A. Issues concerning the obligation, if any, on a local authority to give reasons for the making of a development plan (issue 3) together with consequential questions concerning either the stated basis for making the plan in this case (issue 4) and the proper approach of the court in considering the legitimacy of a plan having regard to the record of the process by which the plan in question came into being (issue 5);

      B. Issues connected with whether the plan can be said to be invalid by reason of uncertainty or arbitrariness including questions relating to the materials that can be relied on for considering such matters and the like;

      C. Issues concerning the standing of the Sisters of Charity to maintain these proceedings (issue 1 above) and connected issues concerning whether the proceedings are premature by reason of the fact that no application for planning permission, as such, has been made (issue 10);

      D. Constitutional issues as to whether the actions of Dublin City Council amount either to an unconstitutional delimitation of the property rights of the Sisters of Charity (issue 13) or, more specifically, amount to a diversion of religious property contrary to Article 44.2.6° of the Constitution;

      E. Similar issues as to whether the relevant zoning amounts to a breach of the rights of the Sisters of Charity under the ECHR and, if so, as to the consequences of any such finding; and

      F. Finally, issues concerning whether it would be appropriate for the court to grant relief having regard to what is said to be the discretionary nature of the judicial remedies sought to be invoked.

2.4 However, it is clear that the background against which all of those issues need to be judged stems from the legal status and nature of a development plan together with the history of the evolution of development plans in Dublin City with particular reference to the process whereby the Development Plan was adopted. I turn first to the legal status and nature of development plans generally.

3. The Legal Status and Nature of a Development Plan
3.1 As development plans involve the exercise by local authorities of significant powers, the starting point for any analysis of the legal status and nature of a development plan must be an exploration of the powers of local authorities and their entitlement to adopt such plans. That exploration, in turn, must commence with a consideration of the relevant constitutional provisions which touch on local authorities. Article 28A, entitled "Local Government", was introduced into the Constitution via the Twentieth Amendment of the Constitution Act 1999, and is in the following terms:

      "1. The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.

      2. There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this Constitution, be so determined and shall be exercised and performed in accordance with law.

      3. Elections for members of such local authorities shall be held in accordance with law not later than the end of the fifth year after the year in which they were last held.

      4. Every citizen who has the right to vote at an election for members of Dail Eireann and such other persons as may be determined by law shall have the right to vote at an election for members of such of the local authorities referred to in section 2 of this Article as shall be determined by law.

      5. Casual vacancies in the membership of local authorities referred to in section 2 of this Article shall be filled in accordance with law."

3.2 This article has been subject to scrutiny on a number of occasions. In Clarke v.South Dublin County Council [2008] 4 IR 178, Hanna J. was faced with a challenge to a local authority's right to promulgate bye-laws which restricted the consumption of

alcohol in public spaces. In finding that the bye-laws concerned were within the principles and polices set out in the Local Government Act 1994, Hanna J., at pp. 187-188, made the following remarks on Art. 28A:

      "Article 28A of the Constitution envisages the conferring of powers to local authorities subject, of course, to the Constitution and to the general law. The Local Government Acts 1925 to 1994 are designed to promote, inter alia, the interests of local communities and, to this end, to confer upon local authorities necessary power and authority to do such acts and make such provisions as are reasonably and lawfully necessary in pursuit of the interest of the common good of the local community and with a view, inter alia, to controlling various mischiefs and nuisances. [...]

      The discretion given to local authorities cannot be unfettered but it is wide. It must, in my view, include the power to make bye-laws of the category with which we are here concerned. It would seem absurd to suggest that the Oireachtas did not intend local authorities to have a wide area of discretion in ordering conduct, inter alia, in public parks. It seems to me that the Oireachtas intended, and was so entitled, to leave to the discretion and judgment of local authorities, the right reasonably to regulate and, where appropriate, to proscribe certain activities and conduct on land under their management and control. The regulations in question do not trespass upon an area visited by the legislature nor do they touch upon circumstances where the Oireachtas has declined to render specific conduct unlawful."

3.3 That decision, and indeed the terms of Art. 28A itself, appears to clarify that local authorities are not possessed of inherent powers. The powers and functions of local authorities are "conferred by law" and are to be exercised and performed "in accordance with law". Instead, as creations of statute, they are subject to the terms of any statute which purports to confer any powers on a local authority. This general position was summarised by Charleton J. in Prendergast v. Higher Education Authority [2010] 1 IR 490, at p. 512, in .the following terms:
      "The powers of government are not to be confused in their equivalence with the powers of local government. Every local authority is a creature of statute, the exercise of its powers is enabled under the Constitution but those powers do not arise out of the exercise of local government authority and history. Rather, the powers of local government to raise funds, to spend them, or to set up schemes to disburse them appropriately arise from specific statutory provisions. This is because local government did not exist as a lawful exercise of authority without the devolution of power to it by central government. So, it is always a central question as to what power was devolved. The doctrine of legal formalism is particularly apposite in the context of local government powers as those powers must firstly be granted by statute and, secondly, exercised in accordance with it. Only limited ancillary powers will be implied onto the statutory powers that exist and no ordinary or usual power, such as the power to buy and sell land or to engage employees, will be assumed unless by necessary implication."
3.4 Thus, although somewhat trite to remark, there is clearly a distinction between the powers of the Oireachtas and those of a local authority. The law making powers of the Oireachtas are wide but are nevertheless subject to the terms of the Constitution. In contrast, while a local authority may, in given circumstances, have a wide discretion within which to exercise its powers, those powers are nevertheless only those conferred by law and are subject, of course, to the Constitution but also to the terms of the conferring statute. As such, the doctrine of ultra vires is plainly applicable to the exercise by a local authority of such powers.

3.5 Following on from the introduction of Art. 28A into the Constitution, the Local Government Act 2001 profoundly affected the functioning of local authorities. Certain of its terms are of some relevance in the present case. Part 9 sets out the functions of local authorities. Of particular note is the "statement of local authority functions", which are set out under s. 63(1), and are as follows:

      "(a) to provide a forum for the democratic representation of the local community, in accordance with section 64, and to provide civic leadership for that community,

      (b) to carry out such functions as may at any material time stand conferred on the relevant authority by or under any enactment (including this Act and any other enactment whether enacted before or after this Act),[...]".

3.6 Section 69 then sets out a number of matters that a local authority must have regard for in carrying out its functions. They are:
      "(1) Subject to subsection (2), a local authority, in performing the functions conferred on it by or under this or any other enactment, shall have regard to-

        (a) the resources, wherever originating, that are available or likely to be available to it for the purpose of such performance and the need to secure the most beneficial, effective and efficient use of such resources,

        (b) the need to maintain adequately those services provided by it which it considers to be essential and, in so far as practicable, to ensure that a reasonable balance is achieved, taking account of all relevant factors, between its functional programmes,

        (c) the need for co-operation with, and the co-ordination of its activities with those of other local authorities, public authorities and bodies whose money is provided (directly or indirectly) either wholly or partly by a Minister of the Government the performance of whose functions affect or may affect the performance of those of the authority so as to ensure efficiency and economy in the performance of its functions,

        (d) the need for consultation with other local authorities, public authorities and bodies referred to in paragraph (c) in appropriate cases,

        (e) policies and objectives of the Government or any Minister of the Government in so far as they may affect or relate to its functions,

        (f) the need for a high standard of environmental and heritage protection and the need to promote sustainable development, and

        (g) the need to promote social inclusion.

      (2) A local authority shall perform those functions which it is required by law to perform and this section shall not be read as affecting any such requirement. [...]"
3.7 Finally, s. 130, which deals with the policy role of an elected council, provides that:
      "It is a function of the elected council of a local authority to determine by resolution the policy of the local authority subject to and in accordance with this Act and the other enactments relating to that authority."
3.8 It seems to me that the provisions of Art. 28A of the Constitution and the more detailed measures cited from the Local Government Act 2001 provide a constitutional and legal acknowledgement of the importance of the role of local representative democracy in our constitutional model. It remains, of course, the case that local authorities have no inherent jurisdiction. The power of local government authorities to make decisions affecting the rights and obligations of parties must be found in statute. However, it does seem to me that it is open to the Oireachtas, in the light of the provisions of Art. 28A, to confer a wide degree of policy discretion on local authorities. That is not, however, to say that local authorities are entirely at large. They operate within the parameters of an enabling statute even though that statute may, in its terms, confer a broad policy discretion on the local authority concerned. Against those broad observations on the status of local authority decision making it is next necessary to turn to the case law in relation to development plans.

3.9 In Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99, in the context of an appeal in a case concerning a challenge to the defendant's decision, qua sanitary authority, to adopt the material contravention procedure against its own development plan in order to construct a dump in a quarry, McCarthy J. in the Supreme Court made the following observations, at p. 113, on the nature of a development plan:

"The plan is a statement of objectives; it informs the community, in its draft form, of the intended objectives and affords the community the opportunity of inspection, criticism, and, if thought proper, objection. When adopted it forms an environmental contract between the planning authority, the Council, and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially. The private citizen, refused permission for development on such grounds based upon such objectives, may console himself that it will be the same for others during the currency of the plan, and that the Council will not shirk from enforcing these objectives on itself. He would be further assured by the requirement of consultation with important and highly qualified independent bodies such as the National Monuments Advisory Council, An Taisce etc.; the motto of the City of Dublin (Obedientia civium urbis felicitas) [the citizens' obedience is the city's happiness] joined with the statutory duty of the Council under the Act would have led to the even-handed administration of the planning code [...]"

3.10 While it will be necessary to analyse the position of local authorities in somewhat more detail later in the course of this judgment, it is worth recalling at this early stage that local authorities have, as already noted, at least in general terms, conferred on them the power to determine policy and to implement that policy within the confines of whatever laws may have been enacted by the Oireachtas in the relevant field. Local authorities are not just the same as any statutory body. They are a species of statutory body which is given an express constitutional mandate and express constitutional recognition. A local authority's entitlement to adopt policy is confirmed by s. 130 of the Local Government Act 2001, although that policy must, in accordance with the section (and indeed having regard to the relevant provisions of the Constitution analysed earlier) be "subject to and in accordance with" both that Act and any other relevant legislation. Applying that general provision to the planning field it seems to me to be clear that a local authority in its capacity as planning authority is entitled to have planning policies provided that those policies are in conformity with planning legislation and provided that the means of implementing any relevant policies are carried out in accordance with law.

3.11 Against that background it is necessary to turn to the 2000 Act which governs the adoption by local authorities of development plans. However, before so doing it is appropriate to note that the concept of a "development plan" originated in the Local Government (Planning and Development) Act 1963 ("the 1963 Act"), which required local councils, for the first time, to produce a development plan.

3.12 The purpose of the 2000 Act, as set out in its long title, is, in relevant part, to:

      "[...] revise and consolidate the law relating to planning and development by repealing and re-enacting with amendments the Local Government (Planning and Development) Acts, 1963 to 1999; to provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing; [...]".
3.13 Section 9(1) of the 2000 Act provides that: "Every planning authority shall every

6 years make a development plan." That plan, under s. 10(1), shall:

      "[...] set out an overall strategy for the proper planning and sustainable development of the area of the development plan and shall consist of a written statement and a plan or plans indicating the development objectives for the area in question."
A, non-exhaustive, list of those objectives is provided ins. 10(2) (as amended by s. 7 of the Planning and Development (Amendment) Act 2010 ("the 2010 Act")) and are as follows:
      "(a) the zoning of land for the use solely or primarily of particular areas for particular purposes (whether residential, commercial, industrial, agricultural, recreational, as open space or otherwise, or a mixture of those uses), [...];

      (b) the provision or facilitation of the provision of infrastructure(...];

      (c) the conservation and protection of the environment including [...];


      (d) the integration of the planning and sustainable development of the area with the social, community and cultural requirements of the area and its population;

      (e) the preservation of the character of the landscape [...];

      (f) the protection of structures, or parts of structures, which are of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest;

      (g) the preservation of the character of architectural conservation areas;

      (h) the development and renewal of areas in need of regeneration;

      (i) the provision of accommodation for travellers, and the use of particular areas for that purpose;

      U) the preservation, improvement and extension of amenities and recreational amenities;

      (k) the control, having regard to the provisions of the Major Accidents Directive and any regulations, under any enactment, giving effect to that Directive, [...];

      (I) the provision, or facilitation of the provision, of services for the community [...];

      (m) the protection of the linguistic and cultural heritage of the Gaeltacht [...];

      (n) the promotion of sustainable settlement and transportation strategies in urban and rural areas [...];

      (o) the preservation of public rights of way which give access to seashore, mountain, lakeshore, riverbank or other place of natural beauty or recreational utility,[...]; and

      (p) landscape, in accordance with relevant policies or objectives for the time being of the Government or any Minister of the Government [...]."

3.14 In addition, and without prejudice to those objectives, the First Schedule of the 2000 Act contains further legitimate objectives which are grouped under the five following headings: Location and Pattern of Development; Control of Areas and Structures; Community Facilities; Environment and Amenities; and Infrastructure and Transport.

3.15 Against the background of those general legal provisions in relation to development plans it is next necessary to turn to the history of development plans in Dublin City insofar as same is relevant to the types of institutional use which are involved in these proceedings.

4. Development Plans in Dublin City
4.1 Dublin City Council has produced six development plans since the 1963 Act mandating the production of such plans was implemented. The first plan dates from 1971 and provided for five land use zones. Over time that number has increased to 14/15 in the more recent plans. In the first plan, institutional uses, typically convents, schools, hospitals etc., on substantial grounds and with mature trees and landscaping, as part of the historical legacy of an expanding city, fell into residential land use (zone 1).

4.2 The 1980 development plan had a wide ranging zoning objective, namely "A­ to protect and/or improve residential amenities", which classification included ordinary residential areas, residential streets with a special townscape or historic character and institutional buildings such as a convents and schools often in large landscaped grounds. The stated policy of the 1980 development plan on institutional land was to retain such uses on the land if possible and only in exceptional cases would alternative uses be considered. Furthermore, the open character of the land was to be retained and open space in excess of normal standards was to be required.

4.3 The 1991 development plan refined and subdivided the "A" zoning into three new sub-zones, including "A3" which was for the stated objective "to seek to retain lands in institutional use, and to retain the open character of these sites".

4.4 In the early 1990s a survey was commissioned (A Survey of Existing Open Space and Institutional Lands, Dublin Corporation, Planning Dept. April 1992) which found that there was a significant reduction (c. 11.15%) in the amount of private open space, and in particular open space/institutional lands, in the city council's area over the life of one development plan. This, according to Mr. 0' Hara, a chartered town planner with Dublin City Council, prompted the Council to include in subsequent development plans objectives to seek the management of open space lands as a scarce and finite resource in a city where all lands are zoned.

4.5 The 1999 development plan created 16 zoning categories and included Z13, which was to ensure that existing environmental amenities were protected in any future uses of those lands, and Z15 which was to provide for institutional and community uses. While both of these classifications dealt with institutional lands, a distinction was drawn between the former, which related to sites where the institutional uses had ceased or were about to cease and where the plan therefore deemed no need to apply Z15 zoning to a particular site, and the latter, which applied to lands, for the provision of institutional and community uses, as long term active resources for the city.

4.6 The 2005 development plan expanded on this distinction by noting in its objective, in regard to Z15, that "[these] are areas which are reserved for institutional and community uses and for existing uses which are unlikely to change in the future".

The Dublin City Development Plan 2011-2017

4.7 The current Development Plan, in its introduction at para. 1.1, describes the "statutory context" in which the plan was framed. That description is useful and sets out the following:

      "The Dublin City Development Plan 2011-2017 has been prepared in accordance with the requirements of the Planning and Development Act, 2000 (as amended), the Planning and Development (Strategic Environmental Assessment) Regulations, 2004 and Article 6 of the Habitats Directive 92/43/EEC.

      The development plan sets out the spatial framework for the city within the context of the National Development Plan, National Spatial Strategy, National Climate Change Strategy, Smarter Travel- A Sustainable Transport Future, Regional Planning Guidelines for the Greater Dublin Area and Transport 21. The key provisions of the national and regional development frameworks and also the relationship between these higher level policy frameworks and this development plan for the city, are set out in the core strategy and Appendix 2 (see Chapter 3 and Appendix 2).

      Taking account of the development framework set out in higher level regional and national plans, the proposed strategy for Dublin promotes the consolidation of the city, maximising efficient use of land and integrating land-use and transport, all within the context of an over-arching philosophy of sustainability and quality of life factors.

      The Strategic Environmental Assessment (SEA) and Appropriate Assessment (AA) processes, undertaken in tandem with the preparation of the plan, have ensured full integration and consideration of environmental issues throughout each stage of the development plan process. The SEA Statement and AA Conclusion Statement demonstrate how the findings of the Environmental Report (ER) and Natura Impact Report (NIR) were factored into the development plan and also indicate the reasons for the choosing the plan as adopted (see Appendix 31)."

4.8 The remainder of the plan, and it is a substantial document, running to some 478 pages, is divided into the following 17 chapters: Background to the making of the plan; Context for the Development Plan; Development Plan vision and core strategy; Shaping the City; Connecting and sustaining the City's infrastructure; Greening the City; Fostering Dublin's character and culture; Making Dublin the heart of the City; Revitalising the City's economy; Strengthening the City as the national retail destination; Providing quality homes in a compact City; Creating good neighbourhoods and successful communities; Implementation; Development Management; Land-use zoning; Guiding principles; and Development standards. The plan also includes a number of appendices as well as a glossary of terms.

4.9 Although of some length, as it is the primary focus of the Sisters' challenge, it is worthwhile to set out the full terms of Z15, which is contained in para. 15.10.14 and headed "Community and Institutional Resource Lands (Education, Recreation, Community, Green Infrastructure and Health)- Zone Z15", is as follows:


      To provide for institutional, educational, recreational, community, green infrastructure, and health uses. These are areas which are zoned for educational, recreational community and health uses and for existing uses which are unlikely to change in the future.

      The present uses on the land generally include community related development including schools and colleges, residential healthcare institutions, e.g. hospitals, prisons.

      These lands are an important resource for the city in the achievement of a compact sustainable city with a full range of community infrastructure such as, schools, hospitals and open space, essential for the creation of vibrant neighbourhoods and a sustainable well-connected city.

      With any development proposal on these lands, consideration should be given to their potential to contribute to the development of a strategic green network (see Chapter 6). In addition, development at the perimeter of the site adjacent to existing residential development shall have regard to the prevailing height of existing residential development and to standards in section 17.9 in relation to aspect, natural lighting, sunlight, layout and private open space, and in section 15.9 in relation to the avoidance of abrupt transitions of scale between zoning. In the event that it is demonstrated to the planning authority that the lands are not required for current or future community and institutional uses and that the lands zoned Z15 are to be comprehensively redeveloped, then a masterplan in accordance with the requirements set out below will be required (see masterplan requirements below).

      A masterplan is not required in the case of minor developments associated with the existing use; where the development proposed relates to extensions to the existing community and institutional use and would enhance the facilities; or in the very limited circumstances as described below.

      In very limited circumstances, where it has been demonstrated to the planning authority that, in order to secure, protect and consolidate the institutional, educational, recreational, community, green infrastructure and health uses and retain the facility in the local area, some limited degree of development may be permissible on a once off basis and subject to the primary use of the site being retained for institutional, educational, recreational, community, green infrastructure and health uses. It must be demonstrated that there is an adequate plan in place to secure the viability of the uses/facilities in place in these circumstances. In addition, the limited degree of development referred to above, should not compromise or undermine in any significant way the provision of the uses/facilities or the capacity of the site to provide such uses/facilities.

      The 25% public open space shall not be split up and shall be comprised of soft landscape suitable for relaxation and children's play.

      And, for the avoidance of doubt, at least 20% social and affordable housing requirement, as set out in the housing strategy in this plan, will apply in the development of lands for residential or where mixed the residential portion only subject to the Z15 zoning objective.


    Permissible Uses

      ATM, Buildings for the health, safety and welfare of the public, Childcare facility, Community facility, Cultural/recreational building and uses, Education, Medical and related consultants, Open space, Place of public worship, Public service installation, Residential institution

      Open for Consideration Uses

      Bed and breakfast, Car park ancillary to and subject to the main use remaining as community or institutional, Funeral Home, Guesthouse, Hostel, Hotel, Municipal Golf Course.

      Masterplan Requirements

      In preparing a masterplan, the following two requirements shall apply:

      a). 25% of the site (this open space is in lieu of the requirement for 10-20% public open space provided for in paragraphs 17.2.3 and 17.9.1) shall be set aside for accessible public open space and/or community facilities. However, this requirement need not apply if the footprint of the existing buildings exceeds 50% of the total site area of the institutional lands in question;

      b). A masterplan setting out a clear vision for the entire land holding, including the portion of the site proposed to be set aside for accessible public open space and/or community facilities must be made. In this regard, the masterplan must incorporate landscape features and retain the essential open character of the site. It must also identify how the requirement for 25% of the site to be set aside for accessible public open space and/or community facilities will be met and it should ensure that the space will be provided in a manner designed to maximise appropriate public use and to protect existing sporting and recreational facilities which are available predominantly for community use. The public open space should contribute to, and create linkages with the strategic green network. Where such facility exists it shall rank for inclusion in the open space requirement."

While the general evolution of the zoning of what might loosely be called institutional lands is of relevance to some of the issues which I have to address, the final piece of the broad background to those issues is to be found in the process which resulted in the adoption of the development plan. I, therefore, turn to that process.

5. The Process by which the Development Plan was Adopted
5.1 There are essentially five steps in the process through which a proposal leading to the adoption of a development plan will proceed and through which process the Development Plan was put. In the first instance an issues paper is drafted and put on public display in relation to which submissions are invited. The City Manager (as defined in s. 2 of the 2000 Act, otherwise "the Manager") then sends reports on pre-draft consultations and motions to the elected members who, in turn, convene a meeting to consider same and to issue directions on the preparation of a proposed draft development plan. Second, that proposed draft development plan is then sent to the elected members and motions invited. A report is prepared and then circulated by the Manager. The elected members meet once again to consider the report and to settle on a draft development plan. Third, that draft plan is then put on public display for a period of approximately three months along with an environmental report as well as an appropriate assessment of the draft plan. Submissions are invited. A Manager's report on those submissions received is circulated among the elected members and is followed by an opportunity for the elected members to bring motions. A similar report on those motions is prepared by the Manager and circulated to the elected members who then meet to consider same and, if thought appropriate, amend the development plan. Fourth, the proposed amendments to the development plan are put on public display along with addenda to the environmental report and an appropriate assessment. A report from the Manager on submissions received is again circulated with a further opportunity to bring motions afforded to the elected members. After a final report on those motions is sent, the elected members hold special meetings to consider the Manager's reports before voting to make the final version of the development plan.

5.2 On the 21st January, 2009, the Council published an issues paper and a notice of intention to review the Dublin City Development Plan 2005-2011. The public was offered the opportunity to make submissions or observations which were then considered by the Council as part of the process which led to the adoption of the Development Plan. In accordance with the procedure set out in ss. 11 and 12 of the 2000 Act, and as described above, the Development Plan was adopted on the 24th November, 2010, and came into effect on the 22nd December, 2010. It is worthy of note that neither of these provisions contains an express requirement on the elected members to give reasons in passing a resolution. At this stage it is worthwhile to describe in more detail the procedure that was followed between January 2009 and December 2010, with a particular regard for the history of the Z15 designation and the participation of the Sisters of Charity.

5.3 The Council's issues paper, which announced its intention to review the existing development plan and to prepare a new plan, also announced a 10 week pre-draft consultation process. In response, Ms. Auveen Byrne, a consultant town planner, made a submission on behalf of the Sisters of Charity. That submission described its purpose as being to:

      "[...] reiterate and elaborate upon the arguments made in the November 2004 submission regarding the unacceptable nature of the Z15 zoning, and to seek the application of the more appropriate Z12 or other appropriate zoning to the Sisters' properties."
That submission contended that the 1991 Dublin City Development Plan discriminated against institutions by zoning much of their lands in a more restricted fashion to other landowners (through A3). This discrimination was said to be compounded by the 1999 plan where more restrictive zoning was applied to a significant proportion of institutional lands, including most of the Sisters' property. Moving on, the submission analysed the Z15 zoning in the Dublin City Development Plan 2005-2011 in some detail. It outlined the Sisters' concerns with that plan, which included a suggestion that Z15 was significantly more restrictive than in the 1999 plan; that although the description of institutional lands in both Z12 and Z15 was virtually identical the reasons for designating some institutional lands as possessing "future development potential" while others as "unlikely to change in the future" were not clear; that it appeared that the only privately owned lands subject to restrictive zoning are held by religious denominations, which was discriminatory; that Z15 was unnecessarily restrictive; and that Z15 was not in fact a "zone" but rather a reservation for a particular purpose, which would open up the possibility of a successful claim for compensation. The submission concluded by suggesting that Z15 zoning should be excluded before exemplifying three properties as illustrations of the Sisters' concerns.

5.4 That submission was included in the Manager's report on the submissions and observations received. The Manager categorised the submissions made as referring to site-specific zoning and consequently recommended that it would be inappropriate at that time to make any determination of the issues raised.

5.5 Ms. Byrne made a further submission dated the 11th March, 2010, in response to the publication of a notice, dated the 17th December, 2009, by Dublin City Council of its preparation of the draft plan which invited further observations and submissions. That submission expressed the Sisters' concern that their earlier legitimate commentary on the Z15 zoning was not adequately reported by the Manager and had not, therefore, been subject to any recommendation made for the consideration of the elected members. The purpose of that submission was again to:

      "[...] reiterate and elaborate upon the arguments made in November 2004 and March 2009 pre-draft submission regarding the unacceptable nature of the Z15 zoning, and to seek the application of a more appropriate zoning, to the Sisters' properties."
5.6 The submission largely echoed the previous submission made in tenor but went further in that it substantively analysed (and criticised) the Z15 zoning in the draft Dublin City Development Plan 2011-2017. The concerns of the Sisters of Charity were restated in a more stark fashion in that, in particular, the first concern articulated was that this designation was discriminatory. That submission was followed, on the 12th March, 2010, by a supplemental submission prepared by counsel on behalf of the Sisters of Charity, and which was also sent to Dublin City Council.

5.7 This consultation process was followed by the preparation by the Manager of a report and recommendation in May 2010 on the submissions and observations received. The Manager recommended against submissions proposing that Z15 lands should be rezoned as Z12 or otherwise. The elected members similarly did not propose to re-zone any of the Sisters' lands as part of the proposed amendments to the draft plan. Instead, the elected members proposed a number of changes to the description of the Z15 zoning which had the effect of making it even more restrictive.

5.8 As the proposed amendments constituted a material alteration of the draft plan, Dublin City Council placed them on public display for a four week period between August and September 20 l 0. That notice again invited submissions or observations and, again, Ms. Byrne made representations on behalf of the Sisters of Charity. She argued that the proposed amendments merely served to augment the detrimental effect of the Z15 zoning designation and instead proposed revisions. A further Manager's report was prepared which was submitted for the consideration of the elected members in October 2010. That report, along with councillors' motions, was considered by the elected members at a specially adjourned meeting held on the 23rd and 24th November, 2010. It was at that meeting that the Development Plan was adopted before then coming into effect on the 22nd December, 2010.

5.9 A number of the motions presented at that meeting are of relevance. In respect of section 15.10.13 Institutional Land (Future Development Potential)- Zone Z12, motions 3037 and 3038 dealt with the issue of minimum public open space. In the latter, C11r. Mary Freehill proposed that:

      "DCC rejects the Managers amendment and resolves to delete all after­

      'On Z12 lands the minimum 20% public open space shall not be split up into sections and shall be comprised of soft landscape suitable for relaxation and children's play.' [sic]"

5.10 In relation to section 15.10.15 Resource Lands (Education, Recreation, Community and Health) - Zone Z15, there were six motions (3039-3044). Three of which concerned the Manager's recommendation to reinstate "residential" as a use "open for consideration".

5.11 Finally, following receipt of the motions received, the Manager produced a report with recommendations (including reasons for those recommendations) on each of the motions proposed. That report was circulated to the elected members in advance of the special meeting. The outcome of that meeting is reflected in the final wording which was adopted in respect of Z15 and which has been set out earlier.

5.12 The original motion (1313), proposed by Cllr. Freehill in relation to change of use, was in the following terms:

      "With any development proposal on these lands, consideration for change of use will only be given if the current institutional uses, e.g. schools, are no longer needed by the community for the foreseeable future."
This was different from the form ultimately adopted in two material respects: first, it appears to envisage that where a (discrete) institutional use was no longer needed, then a change of use would be considered. The proposal in this form did not require it to be proved that all institutional uses were no longer required for a change of use to be considered. Second, this proposal is limited in time to the "foreseeable future". This limited form of proposal was incorporated by the Manager in his subsequent report for the consideration of the elected members. The draft plan was then placed on public display inviting the submission of observations by the public, as described. A number of lengthy submissions were received, including on behalf of the Sisters of Charity, which were summarised in the subsequent Manager's report. The submissions could fairly be described as representing a broad spectrum of views of interested parties. The consequence was the introduction of the following (final) revised wording in relation to change of use:
      "In the event that it is demonstrated to the planning authority that the lands are not required for current or future community and Institutional uses and that the lands zoned Z15 are to be comprehensively redeveloped, then a masterplan in accordance with the requirements set out below will be required [...]."
5.13 It follows from that analysis that the Manager, and presumably the senior planning officials who assisted the Manager, were in favour of the Zl5 zoning in principal. Despite the submissions made by Ms. Byrne on behalf of the Sisters of Charity, the view as taken, and supported by the elected members, was that a separate Z15 zoning was justified. However, it is clear that the Manager did not agree with the exclusion of residential development from the "open for consideration" category applicable to Z15 zoning. On this issue the elected members disagreed with the Manager and, by adopting the appropriate amendments, ultimately adopted the Development Plan in its final form which excludes residential from the "open for consideration" provisions of Z15 zoning. It is finally worth noting that the criteria by reference to which it is possible, through a masterplan, to have a comprehensive development on an area zoned Zl5 changed, in the course of the various resolutions passed, as described above, from the version which appeared to be dependent on it being established that the existing institutional use was no longer required to the more general provision which found its way into the Development Plan as adopted.

5.14 Against that broad background it is appropriate, before turning to address the specific issues which arise in this case, to analyse certain aspects of the statutory nature of development plans.

6. Statutory Nature of Development Plans
6.1 I have already briefly addressed the statutory basis for a development plan as to be found, in particular, ins. 9 of the 2000 Act. Each local authority, in its capacity as a planning authority, has an obligation to produce and review development plans. In addition, individual applications for planning permission must be considered by reference to the then current development plan (s. 34(2)(a)(i)). Furthermore, planning permissions can only be granted by the local authority (or on appeal by An Bord Pleanála) in contravention of the relevant development plan if appropriate procedures are gone through.

6.2 Section 34(6) of the 2000 Act provides that a planning authority may grant permission for a development which would materially contravene a development plan or local area plan. Should the elected members decide to so grant permission, then the executive must publish a notice of that intention in a local paper. The notice must provide detail as to which objective of the development plan would be materially contravened. Copies of the notice must be sent to the applicant and to any other interested parties who have made submissions. Thereafter, and within a period of four weeks following publication of the notice, the planning authority will consider any further submissions received. Should the authority feel that the submissions raised are insufficient to sway its original view, then the authority can pass a resolution to grant the permission sought. That resolution must be passed by a majority of not less than three quarters of the total number of the elected members. The eight week application period restarts from the date of the publication of the notice in the newspaper of intention to materially contravene the plan. It may, however, be extended by consent.

6.3 It follows, of course, that a development plan is not fixed in stone forever. The legislation contemplates that a full review of the development plan for each planning authority is to be conducted every six years (s. 9(1)). Thus, a development plan is neither absolute, in the sense that there are procedures which can override it, nor permanent, in the sense that it will always come up for review on a periodic basis. That being said, the development plan does, nonetheless, play a very significant role in defining the type of development which can be carried out in respect of any lands, including the use to which the lands in question can be put. Indeed a change of use is also, of course, a development in the sense in which that term is used in the 2000 Act.

6.4 It also seems to me to be appropriate to characterise the development plan as a mixture of the general and the specific. The development plan is required, as has been pointed out, to contain a written statement of the development objectives of the area in question. The means by which those objectives are to be achieved are developed in the detail of the plan which specifies different zones in which particular types of development are to be focused. It is, of course, the case that development plans generally, and the specific Development Plan which is the subject of these proceedings in particular, frequently give a short generic description to each type of zoning and then set out in somewhat more detail the type of development which is either generally permitted within the zone or which may be, as the phrase goes, "open for consideration".

6.5 It seems to me that it is, therefore, appropriate to characterise a development plan as being a mix of broad policy and concrete implementation measures. The implementation measures can themselves, of course, range from the specific (such as, for example, maximum heights of buildings or plot ratios) to the more general (such as a desire to provide a certain level of green space in an area) which can sometimes border on the aspirational. There are many points in between those two extremes so that, for example, a desire for the retention of green space in an area zoned for housing development may contain quite specific provisions as to the proportion of green space that is to be kept when new housing development is undertaken. It is, however, also fair to say that elements of the development plan amount to something close to pure policy formation. The extent to which, to take but one example, it might be considered desirable to provide high density residential accommodation in the centre of larger cities for the purposes of minimising the burden on, for example, transport infrastructure is almost entirely a matter of policy. While the overall objective of reducing the burden on infrastructure will, doubtless, be a real consideration for any local authority having a significant urban area under its control, nonetheless just how far it is appropriate to go in increasing residential density is a matter on which a range of legitimate opinions may be held. Thus, the general objectives of a development plan involve the relevant local authority in making a range of policy choices over a number of areas.

6.6 In this context it is appropriate to refer at this stage, at least briefly, to one of the important legal issues of principle which was the subject of some debate at the hearing. That general issue concerns the proper approach of a court when asked to review a measure adopted by a local authority with particular reference to a development plan.

7. The Nature of Review
7.1 When it is necessary for the courts to consider the validity of legislation enacted by the Oireachtas which has the effect of interfering, in at least some way, with rights, then the courts apply the proportionality principle identified in Heaney v. Ireland [1994] 3 I.R. 593, at p. 607. The test is as follows:-

      "The means chosen must pass a proportionality test. They must:-

      (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

      (b) impair the right as little as possible, and

      (c) be such that their effects on rights are proportional to the objective[...]".

7.2 In one sense it can be said that under the Irish constitutional framework the Oireachtas is at large as to the legislation which it can introduce provided that the legislation is not in breach of the Constitution, either by contravening the requirements of the Constitution (whether express or implied) or by interfering with rights in a way which does not satisfy the Heaney test.

7.3 On the other hand, statutory bodies, which are given the legal power to make binding decisions affecting a person's rights, have no inherent jurisdiction, but rather are confined by the terms of the relevant statutory regime. In many such cases the statutory regime concerned will set out what circumstances need to be present to enable the body concerned to exercise its legal power. For example, legislation may provide that the relevant statutory body must be "satisfied" of a certain state of affairs in order to exercise a statutory power. Likewise, the relevant body may have to consider whether a particular measure is "necessary" in order to achieve some specified statutory end. A range of other terms and concepts are also frequently encountered. In such cases the well travelled jurisprudence in respect of irrationality under the principles identified in O'Keeffe v. An Bord Pieanála [1993] 1 I.R. 39 are applicable. The statutory body must take into account all matters which the statute requires, exclude from its consideration all matters not permitted, and come to a conclusion which is reasonably open on the available materials.

7.4 It seems to me that the reason for there being two different tests stems from the differing underlying nature of the respective power being exercised. The Oireachtas is given full power of legislation under the Constitution (Art. 15.2.1°) limited only by the constraints which the Constitution itself imposes. The default position is that the Oireachtas can legislate. Where the Oireachtas has legislated, it is for any party who suggests that the Oireachtas has strayed beyond the boundaries which the Constitution permits to establish that fact. The Oireachtas is under no particular obligation to establish an entitlement to legislate. It may, of course, be the case that, where legislation enacted by the Oireachtas comes under constitutional challenge, the Attorney General will wish to place evidence before the court for the purposes of establishing facts which might be material to the court's consideration of whether measures contained within the relevant legislation are proportionate. This very issue came under consideration in P.J. Carroll & Co. Ltd. v. Minister for Health and Children [2005] 1 IR 294, where the Supreme Court made clear that the State was entitled to put forward evidence as to the extent of the problems which flowed from tobacco use in order to seek to persuade the courts that particularly strong measures might nonetheless be proportionate in seeking to discourage such use.

7.5 However, even in a case such as that, it is not the position that the State has necessarily to produce evidence to prove that its policy is reasonable. The Oireachtas is entitled to adopt policy in the light of whatever considerations it considers appropriate. The policy, and the ends sought to be achieved by the relevant legislation, may be obvious and may not require any evidence, in such cases the court can assess whether the means adopted in the legislation concerned is proportionate to the ends pursued. If the State chooses to call evidence it is simply because it may be felt, in relation to a particular case, that such evidence may be of assistance in bolstering the State's case to the effect that the measures contained in the relevant legislation are proportionately necessary to the ends by, for example, as in Carroll, establishing the extent of the problem which the legislation in question sought to address.

7.6 For present purposes, however, the important point to make is that the Oireachtas does not have to take into account any particular factors or be satisfied of any particular matters when deciding on legislation. The Oireachtas is elected to determine policy and to put that policy into effect by means of legislation. Within the bounds of what is constitutionally permissible the Oireachtas is at large as to its policy.

7.7 At the other end of the spectrum, however, statutory bodies do not have the right to make any legally binding decisions save in accordance with the mandate specifically conferred on them by law. The default position is that such bodies cannot act unless the legal criteria which entitle them to so act have been established and then only within the bounds imposed by law. Such bodies are not at large. Rather, such bodies are required to act solely within the four walls of whatever statutory or legal regime applies to them. Where the exercise of any such power by a statutory body comes under scrutiny the court will, therefore, be concerned to ensure that the statutory body has acted in a lawful manner and, consequently, will consider any case made by someone seeking to challenge an exercise of power on the basis of an allegation that the statutory body has gone outside either the express or implied obligations of its statutory remit. It is for that reason that the court will be concerned to see that the exercise of that statutory power operates within the O'Keeffe principles.

7.8 The difference, therefore, between Heaney and O'Keeffe can be seen to flow from the differing nature of the power being exercised. On one hand, there is the entitlement of the Oireachtas to formulate policy and put same into practice through legislation limited only by the parameters of the Constitution itself. On the other, and in contrast, is the limited power of any statutory body to exercise an entitlement which has an effect on a person's rights solely within the four walls of the statutory or other legal regime by which the power to effect such rights is conferred.

7.9 The position of the Oireachtas is, of course, clear. The position of a statutory body with a precise and relatively narrow statutory mandate is equally clear. However, for the reasons already analysed, a development plan contains at least a significant element of what might legitimately be described as policy formation. It is, of course, the fact that there are limits on the range of policy options which can be adopted by a local authority for the purposes of formulating its development plan. The plan must conform with the legislation. It must be designed and set out with "an overall strategy for the proper planning and sustainable development" of the relevant area (s. 10(1) of the 2000 Act). It must conform with the overall policy objectives mandated by the legislation (such as have been described earlier in this judgment, at para. 3.13). Within those very general obligations a great deal of discretion is left to the local authority and it does not seem to me to be unreasonable to describe the breadth of that discretion as amounting to an express, and constitutionally permissible, conferral of at least a degree of policy­ making discretion on the local authority concerned. Therefore, the broad strategy of a development plan lies at the policy making end of the spectrum to which I have referred. However, it seems to me that the means of implementing any broad strategy, at least when the matter comes down to one of detail, is more properly considered towards the end of the spectrum where specific statutory powers are being utilised. These broad considerations have the potential to be of particular relevance in the first specific set of issues, which are as to whether, and if so to what extent, there is an obligation to give reasons to explain the content of a development plan, and to which I now turn.

8. Is there a General Duty to Give Reasons?
8.1 There are a number of specific provisions, within the context of the planning code and more generally, which require a local authority to provide reasons in certain circumstances.

8.2 In relation to a development plan there are two specific instances where reasons are required. In the first, s. 12(5)(aa) (as inserted by s. 9(c) of the 2010 Act) requires a planning authority to give reasons where it decides not to comply, inter alia, with a recommendation made in the draft plan and report following a submission of, or observation or recommendation from, the Minister or regional authority. While the second, s. 13 of the 2000 Act, on the variation of development plans, provides that:

      "A planning authority may at any time, for stated reasons, decide to make a variation of a development plan which for the time being is in force."
8.3 More generally, the planning code also provides other situations in which reasons are required. They include a "section 5 referral" under ss. 5(2)(a) and 5(6).

8.4 Section 19(1)(e) of the 2000 Act (as inserted by s. 12 of the 2010 Act), which deals with the application and content of local area plans, provides that:

      "No resolution shall be passed by the planning authority until such time as the members of the authority have:

      (i) notified the manager of the decision of the authority to defer the sending and publishing of the notices, giving reasons therefor, and [...]".

This provision is of note for the simple fact that it requires the elected members to provide reasons for a decision.

8.5 While there are numerous other examples within the terms of the (amended) 2000 Act of obligations, in various contexts, to give reasons, it is not necessary to set them out exhaustively. It serves merely to highlight that they are, in their respective terms, limited in scope and are not stated to be of general application.

8.6 Similarly, the Planning and Development (Strategic Environmental Assessment) Regulations 2004 (S.I. no. 436 of 2004) provides, inter alia, for the giving of reasons by a local authority in respect of environmental assessments. The precise circumstances in which reasons are required by those regulations are not relevant; again merely to note the fact that reasons are required.

8.7 Article 6 of the Habitats Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) concerns the obligation on Member States to establish the necessary conservation measures for special areas of conservation. Such measures may be site specific or integrated into "other development plans". The provision concludes in the following terms:

      "Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest."
This would appear to envisage that any measure taken by a Member State must, on its face, indicate the considerations which found the decision.

8.8 These latter two examples are noted for the reason that both are referenced as part of the "statutory context" in which the Development Plan was drafted.

8.9 As a matter of constitutional justice, there is no clear jurisprudence which provides for a general duty to give reasons in all circumstances, or indeed in the specific context of development plans. On that basis, and in circumstances where the facts before the court have not been considered in any similar case, there appears little benefit in attempting to parse in detail the jurisprudence which recognises a duty to give reasons in particular cases.

8.10. However, it is clear that, in defined circumstances, a local authority can be and is required to give reasons. Furthermore, in the adoption of a development plan, that plan is obliged by statute to take into account a number of defined objectives. Similarly, in carrying out its functions, a local authority is required to have regard for a number of defined matters. However, there appears to be no general duty under statute which requires a local authority to give reasons in all circumstances.

8.11 Both sides sought to place some reliance on the fact that the 2000 Act contains an obligation on local authorities to give reasons in some circumstances. Dublin City Council drew attention to the fact that the presence of such express provisions in relation to the exercise of quite a number of defined functions under the Act, coupled with the absence of any such express requirement to give reasons generally in respect of development plans, ought lead to the inference that the Oireachtas did not intend that a development plan have reasons given for it. It was argued that the policy nature of the content of a development plan provided an entirely understandable rationale for the Oireachtas taking such a position.

8.12 On the other hand, the Sisters of Charity placed reliance on the fact that reasons have to be given for certain decisions in the planning context (including, in at least some of the instances cited, decisions made by the elected members themselves). It is said, therefore, that the Act contemplates that elected members may have to give reasons for at least some of their decisions. That point was made in the context of an argument put forward on behalf of Dublin City Council which sought to place reliance on what were said to be the difficulties in ascertaining the reasons for a decision made by an elected body whose members may have a whole range of differing motivations in voting in whatever way they do.

8.13 In the course of argument on that point I invited counsel on both sides to consider the form of resolution to amend the development plan in Dún Laoghaire­ Rathdown County Council which formed part of the backdrop to my decision in Tristor Ltd v. Minister for the Environment & Ors [2010] IEHC 397. While that case was concerned with a very different issue, being the powers of the Minister concerned to direct changes in a development plan, nonetheless the facts set out in the judgment in that case refer to what one could, I think, properly describe as a reasoned resolution to amend the development plan of Dun Laoghaire-Rathdown County Council which was adopted by the elected members in that case. It seems to me to be clear, therefore, that there is no basis in principle for suggesting that elected members cannot give, or be required to give, reasons. The fact that the 2000 Act places such an obligation, at least in some cases, on elected members seems to put the matter beyond doubt. The fact that elected members are more than capable, as in Tristor, in including reasons in any appropriate resolution seems to make clear that there are not, in fact, practical difficulties in so doing.

8.14 I should also touch briefly on one argument made on behalf of Dublin City Council. It was suggested that great difficulties might be encountered if challenges were brought suggesting that reasons given by elected members were not, in fact, the true reason of the elected members concerned (or some of them). It does not seem to me that that represents a valid argument. Where the formal document adopted by the local representatives either itself contains the reasons (such as the motion in Tristor) or refers to other documentation by reference to which the reasons can be ascertained, then it seems to me that, by passing the relevant resolution or adopting the appropriate measure, the necessary majority of the elected members have signed up to the reasons thus expressed. Although there may be exceptional circumstances, such as allegations of corruption and the like, when it may be appropriate to go behind the reasons expressed, it seems to me that an elected member, who has adopted a particular measure on the stated basis that the reason for that measure was as described in the appropriate documentation, could not be heard to go behind the reasons given. On that basis it does not seem to me that there is any reason in principle why elected representatives, in the planning context, cannot be required to give reasons. That is not, however, the end of the matter. The question which arises is as to whether elected members are required to give reasons in respect of development plans.

8.15 It must be recalled that the underlying jurisprudence in respect of the obligation to give reasons suggests that the basis for the obligation (in the absence of an express statutory requirement) is to enable the court to exercise its legitimate judicial review function. In at least some cases if a court does not know why a decision was taken, then the court may not be able to ascertain whether the decision was lawful for the lawfulness of the decision in question may depend on whether the reasons were valid in the light of the appropriate statutory and legal regime applicable. The rationale behind the requirement to give reasons was articulated by Kelly J. in Mulholland v. An Bord Pleanála (No. 2) [2006] 1 IR 453, at pp. 460 et seq., where, in the section headed "the purpose of reasons" and quoting from earlier case law, he held that:

      "In O'Donoghue v. An Bard Pleanala [1991] I.L.R.M. 750 Murphy J. said at p. 757:-

        'It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient first to enable the courts to review it and secondly to satisfy the persons having recourse to the tribunal that it has directed its mind adequately to the issue before it. It has never been suggested that an administrative body is bound to provide a discursive judgment as a result of its deliberations ...'

      Likewise, in State (Sweeney) v. Min. for the Environment [1979] I.L.R.M. 35, Finlay P. stated at p. 37 that the purpose of the requirement for reasons was:-

        ‘... to give ... [to an] applicant such information as may be necessary and appropriate for him, firstly, to consider whether he has got a reasonable chance of succeeding in appealing against the decision of the planning authority and secondly to enable him to arm himself for the hearing of such an appeal."'
8.16 It is, of course, the case that Kelly J., in Mulholland, was concerned with reasons required to enable a person to consider a statutory appeal within the planning system. However, in Meadows v. Minister for Justice [2010] 2 IR 701, at p. 732, Murray C.J. (part of the majority in that case) suggested that the failure of the Minister in question to supply adequate reasons meant that the applicant's "constitutional right of access to the courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective". While Meadows was, of course, a case in the immigration field, there is no reason why, at the level of principle, the comments of Murray C.J. are not applicable in an appropriate way in respect of any other type of statutory or administrative decision. The underlying rationale of cases such as Meadows (in that respect) and Mulholland is that decisions which affect a person's rights and obligations must be lawfully made. In order to assess whether a relevant decision is lawful, a party considering a challenge, and the court in the event of a challenge being brought, must have access to a sufficient amount of information to enable an assessment as to lawfulness to be made. What that information may be, may vary enormously depending on the facts under consideration or the nature of the decision under challenge. However, the broad and underlying principle is that the court must have access to sufficient information to enable the lawfulness of the relevant measure to be assessed.

8.17 Of course the application of that broad principle to the question of reasons in the context of the adoption of a development plan begs the question as to what the local authority in question needs to be satisfied of to make the decision to adopt the plan in the first place. It is for that reason that I have analysed the difference between decisions which are at the policy end of the spectrum, on the one hand, and those which involve the exercise of a power for which specific criteria or facts need to be established, on the other. It seems to me to be difficult to see how detailed or specific reasons could be given for decisions at the policy end of the spectrum. Whether high density development by means of high rise buildings is a good idea or not is something on which people may legitimately differ. Doubtless it would be possible to produce appropriate development plans for Dublin which either did or did not make provision for high rise in some locations. Whether to allow high rise (and if so to what extent) is very largely a policy question which is ultimately for the elected members although doubtless reasons could be given for favouring that policy such as a desire to ease the burden on infrastructure. However, even in those circumstances the value judgment as to whether more high rise would be justified by whatever reduction might be seen to come on the burden on infrastructure is a matter of choice and preference.

8.18 In those circumstances it does not seem to me that the policy end of a development plan being the overall strategy and the principal means designed to implement that strategy are elements of a plan in respect of which there could be any obligation to give reasons save such as might be necessary to demonstrate (if it were not obvious from the plan itself) that the policies underlying the plan were within the statute or were compliant with broader policies which the statute requires to be respected. The broad strategy and its broad means of implementation involve the making of policy choices which are precisely the kind of matters which the current legislation gives to elected members. In this context it is none of my function to assess whether the conferring of those broad powers on elected members is the best means of implementing an appropriate planning strategy. The Oireachtas, in the exercise of its law making power under the Constitution, has, for the time being, decided that it is the elected members who are to make those decisions. As an aside, it is to be noted that although that decision, or at least the consequences of that decision, is not entirely without criticism (see, for example, Yvonne Scannell, The Catastrophic Failure of the Planning System (2011) 18(1) DULJ 393), the issues presently before the court do not require any examination of the exercise by the Oireachtas of its law making powers in this respect

8.19 However, it seems to me that when a development plan gets down to the nuts and bolts in a way which has the potential to specifically affect the rights of individuals, both those who may wish to develop their own lands or those who may have their own interests interfered with by the development of neighbouring lands, then it seems to me that it is necessary to give at least some reasons for the precise means of implementing the overall strategy or policy adopted. The extent of the reasons required to be given will depend on the nature of the specific provisions of the development plan under consideration.

8.20 It is, of course, the case that the process for the adoption of a development plan, which I have already set out in some detail, involves an active role for both the Manager and the planning staff of Dublin City Council. The draft development plan is itself a reasoned document. At least in general terms it seems to me that the development plan as drafted by the local authority's senior officials provides reasons, where reasons are required, for the particular implementation measures adopted. However, the problem seems to me to emerge where the elected members take a different view to that of the senior officials concerned. It is, of course, the absolute entitlement of the elected members to take a different view and to put their own view into effect by proposing whatever amendments to the development plan they may consider appropriate. As pointed out earlier, the normal practice is that when such amendments are proposed the Manager produces a report on the amendments which, at least in some cases, recommends acceptance of the amendment or perhaps proposes a change in the development plan which, while not in accordance with the precise terms of the amendment, does recognise the issue raised by those elected members who propose the amendment concerned. In such cases, and on the assumption that the Manager either supports the amendment or that the Manager's alternative is adopted, then the Manager's report will itself provide reasons for the changed development plan brought about by the relevant amendment so that the Manager's report, in conjunction with the development plan as a whole, will form a reasoned basis for the plan as amended.

8.21 The problem as to reasons comes into focus when the elected members are not persuaded by the Manager's position and adopt an amendment with which the Manager does not agree. Where then is one to find the reasons for that amendment? The answer must be that, to the extent that the subject matter of the amendment is one in respect of which reasons are required (i.e. that it is not at the policy end of the spectrum) and to the extent that the elected members differ from the Manager so that reasons cannot be found in the Manager's report, then there is an obligation on the elected members to include whatever reasons motivate their decision either directly in the resolution itself or in some documentation or materials referenced in the resolution which can allow an interested party to ascertain the reasons for the amendment.

8.22 To summarise the position at least at the level of principle, it seems to me that reasons are required for at least elements of the development plan (i.e. those which cannot reasonably be described as being simply policy choices). The reasons may be found in the development plan itself. Where, however, the development plan is the subject of significant amendment and where the rationale for the relevant amendment (consistent with the other provisions of the development plan) is not to be found in a Manager's report, then there is an obligation on those proposing the amendment to either refer to the reasons for the amendment in the resolution by which the amendment is effected or in other documentation or materials specifically referenced in the amendment resolution. Against that general principle, it is next necessary to consider whether reasons were required in this case, and if so, where one must look to find the reasons and whether the reasons given are adequate.

9. Are Reasons given and are they Adequate?
9.1 It seems to me that in order to answer the question as to where the reasons must be found, it is necessary to look to the purpose of the requirement that there be reasons in the first place. As pointed out earlier, the underlying rationale for the requirement to give reasons is that an interested party is entitled to assess whether or not there may be a case to be made that a local authority has acted unlawfully in formulating a development plan. The reasons required to be given must, therefore, be sufficient to allow such an assessment to be made. In addition, in the event that there be a challenge, the reasons must be sufficient to allow the court to exercise its role in determining whether or not the formulation of the development plan was lawful. It follows that the reasons must be capable of being ascertained by any interested parties and the reasons must also be capable of ready definition. It seems to me to follow that the reasons must be capable of being found in a way which is either publicly available or, at least, where an interested party can gain access to the reasons on reasonable request. If that were not to be the case, then it could not be said that the local authority had given reasons but simply that it may have had reasons. The issue is concerned with the giving of reasons so that those reasons may be known and can be assessed by interested parties and, if necessary, in turn, scrutinised by the court.

9.2 The second leg of the requirement to give reasons is that the reasons be capable of being determined with some degree of precision. It seems to me in that context that any document recording the reasons must be such that it is possible to say that the document concerned actually represents the reasons for the decision in question in a way which ought not be capable of real debate. It does not seem to me that it necessarily follows from the above analysis that the reasons have to be included in the development plan itself. It is, for example, possible that there may be documents referred to in the development plan which can provide the rationale for aspects of the measures incorporated into the development plan. In addition, documents prepared in the context of the adoption process may, depending on the content, also be capable of being relied on as an authoritative statement of the rationale. However, the requirement of reasonable certainty as to the reasons seems to me to necessitate that any documentation said to represent the reasons must be either expressly referred to in the development plan or be, by necessary implication, from the terms of the development plan, clearly adopted by those voting in favour of the development plan as part of the reasoning concerned.

9.3 At the level of principle, therefore, it seems to me that while it would ideally be the case that any necessary reasoning is set out in a development plan itself, there may be circumstances where other documents may, expressly or by necessary implication, be taken, for the purposes of reasons, to be incorporated into the development plan and may, therefore, be relied on by the court as representing the reasons. On the facts of this case it does not seem to me that there are any documents extraneous to the Development Plan which could reasonably be relied on as representing the reasoning, at least so far as the reason(s) for the decisions which are the subject of challenge in these proceedings are concerned. As is clear from the history of the various resolutions which led to the finalisation of the Development Plan with zoning Z15 in its current form, none of those resolutions were reasoned in the sense of setting out the reasons why it was considered desirable to amend the Development Plan in the manner proposed. Likewise, none of the resolutions contained any direct or indirect reference to other documentation whereby or from which those reasons could be ascertained. In addition, and as has already been outlined, it is clear that the Manager and, presumably, senior planners within the Council, did not fully agree with the proposed amendments. It follows that the reasoning of those senior officials of Dublin City Council, as contained in various documents which formed part of the sequence of events leading to the finalisation of the Development Plan, do not provide reasons for the formulation of the controversial aspect of the Development Plan in its final form for those documents, on the contrary, put forward an argument for not so amending the plan. While accepting, therefore, for the reasons already analysed, that there may be cases in which other documents can legitimately be taken into account, it does not seem to me on the facts of this case that there is any reasoning justifying the Z15 zoning in its final form other than that which is contained in the Development Plan itself. For reasons already touched on, I am not satisfied that the comments attributed to individual members, either at council meetings or otherwise, can properly be said to represent reasons sufficient to satisfy the obligation to provide reasons.

9.4 On that basis it is next necessary to turn to whether, on the facts of this case, and in respect of the issues with which I am concerned, it can be said that the plan sets out sufficient reasons for the adoption of Z15 zoning in the form ultimately adopted. The starting point has to be a consideration of Z15 zoning itself. The full text of that zoning has been set out earlier in this judgment. Apart from describing the objective and indicating the general current use of the lands in question, the only real reasons given seem to be found in the third paragraph which suggest that the lands are an important resource for the city in the achievement of a compact sustainable city with a full range of community infrastructure (giving examples) essential for the creation of vibrant neighbourhoods and a sustainable well connected city. So far as reasons are stated, they are, in substance, to the effect that any city, and in particular a compact one, needs adequate community or institutional resources and that properties which are currently used for such community resources should, in the main, be retained for that purpose. To that extent, at least at a very broad level, it seems to me that reasons are given. However, it is when one comes to a more detailed analysis of the Z15 zoning that greater difficulty seems to me to arise. First, the zoning acknowledges, in express terms, that a situation may arise where land zoned Z15 is no longer required for current or future community and institutional uses. In such circumstances development is allowed although subject to significant restrictions. It will be necessary to turn to that regime in due course.

9.5 However, one of the difficulties that seemed to me to emerge in the debate before me was as to the circumstances in which the contemplated possibility of redevelopment might arise. In its terms the zoning requires that for this possibility to arise it must be "demonstrated to the planning authority that the lands are not required for current or future community and institutional uses". I have to confess that I remained, at the end of the hearing, somewhat unclear as to what the position of Dublin City Council as to the meaning of that phrase was. Two possibilities were canvassed in argument. It is perhaps easier to understand the distinction by taking an example. Assume that there is a school in an area with a declining population and no realistic prospect of a change in the population of young people requiring schooling for the foreseeable future. In those circumstances it may well be that there would be less need for schools in the area in question. By and large the catchment area for schools is relatively small. In those circumstances it might be easy enough to demonstrate that there was no longer a need for the school in question. Would so demonstrating meet the test? In other words, would demonstrating that the current institutional use was no longer required and that there was unlikely to be any requirement in the foreseeable future for the same type of institutional use be sufficient? On the other hand, would it be necessary to demonstrate that there was not some other form of institutional or community use demand which might currently exist or might be likely to arise in the future?

9.6 To take a perhaps practical example, some areas in the past had a very large number of young people when newly developed (on the basis that many of those moving into new areas will be youngish couples more likely to have children) but as the area matures a more balanced or even aging population may develop. It is possible that the demand for school places may decline in such a situation but that the need for community facilities for the elderly or facilities more likely to be availed of by the elderly might increase. Would it be enough to simply show that a site was no longer necessary for a school or would it be necessary to show that were not other community or institutional uses (perhaps for the elderly) to which the site concerned might be applied? It seemed to me that, at different stages in the process, both in the presentation of evidence, in the filing of written submissions and in oral argument, Dublin City Council seemed to take up both positions although they are, of course, incompatible. It is next appropriate to turn to the context in which that distinction seems to me to be of some importance.

9.7 Reading the Z15 zoning as a whole, and in the context of the totality of the Development Plan, one might be entitled to infer that there are two possible bases (derived from the contents of the plan) on which, at least in very general terms, it might be said that the Z15 zoning could be beneficial. The first is the need to have sufficient lands on which to place community and institutional facilities so that they can be located convenient to the communities which they are designed to serve. The second is the possible contribution to what is described as the development of a strategic green network by reference to Chapter 6 of the Development Plan. Turning to the latter first, there was some debate at the hearing before me as to the justification in using the zoning of privately owned lands to retain open space. While there is no doubt that the public amenity in lands to which the public have access is significant, it does not seem to me that there is also no possibility of there being a public amenity to privately owned open space lands. Even though the public may not have a right of access to private but open lands, the presence of such open lands in an area has the potential to contribute to the amenity of the area generally. There is a very great difference between a heavily built on quarter of an urban area, on the one hand, and a quarter which, while largely in private ownership, contains a significant amount of un-built on lands, on the other hand. It is, of course, the case that a planning authority cannot, by means of a development plan, turn private land into public land. However, the maintenance of some degree of open space in an area seems, at least at a general level, to be potentially a legitimate and desirable object which can inform the contents of a development plan even where some of the lands in question may not be publicly owned or are not such as the public generally have a right of access to.

9.8 Second, it does seem logical to assume that at least many community and institutional uses require significant sites. The very controversy raging at present over the proposed National Children's Hospital is, perhaps, a very good example of the need for significant sites to house at least certain types of community facilities. However, it does have to be said that not all such facilities require a large block of land. Again, at the level of general principle, it might, indeed, be legitimate for a planning authority to conclude that it needed to maintain significant blocks of land in a way that would allow those blocks of land to be used for the sort of community facilities that require a large site. The problem is that once such a site is divided up and allowed to be developed on a piecemeal basis, it may be very difficult to reassemble it without incurring potentially prohibitive cost. It is against that background that the analysis which I have conducted earlier concerning the possible meaning of the Development Plan in relation to discontinuance of current institutional or community use needs to be seen. If the plan simply said that schools should remain schools unless and until it is demonstrated that there is no need for a school in the relevant place or that hospitals should remain hospitals until it is demonstrated that there was no need for a hospital in that location, the reasons for such a measure would be obvious. It would need little explanation in the development plan concerned. But if it is necessary to keep land in institutional or community use for a whole range of such uses widely defined, then it is not so clear as to why such a measure is required (without some analysis of demand) particularly when many such uses do not necessarily require large sites. In addition, regard has to be had to the fact that the zoning itself contemplates the possibility of some development in a number of circumstances short of the form of comprehensive development permitted when it has been demonstrated that no community or institutional use requirement remains.

9.9 First, the plan envisages that there may be minor developments associated with existing use. That measure is hardly either surprising or controversial. Many of the types of institutional use which come within the Z15 zoning have evolving requirements. Hospitals and schools may grow. The nature of facilities for the elderly may change. Many other examples could be given. The underlying use will, however, remain largely the same. The second area where development appears to be permitted in conformity with the zoning is where it is determined that the protection of the relevant community and institutional use requires a one off development subject to it being clear that the institutional or community use concerned can continue. It is in that context that the issue which is at the heart of the complaint which is made by the Sisters of Charity in this case needs to be addressed. As has been noted earlier, one of the significant differences between Z15 zoning and the zoning which previously applied to much of the lands in question, is that residential use is no longer "open for consideration". However, a number of built on type uses are said to be open for consideration such as a bed & breakfast, guesthouse, hostel, hotel or funeral home, amongst others. It would seem, therefore, that it is open to Dublin City Council, in conformity with the Development Plan, to allow limited development of that type permitted on land zoned Z15, but not to allow equally limited housing development. It is not immediately obvious as to what the planning or environmental considerations that led to such a conclusion actually are. As was pointed out in the course of the hearing by reference to the many maps produced in evidence, many of the lands zoned Zl5 are, for fairly obvious reasons, located in residential areas for it is the residents of those areas who use the schools and hospitals which operate on the Z15 lands. There does not seem, therefore, to be any particular reason why further housing in those areas is necessarily to be ruled out. If the purpose is to retain large blocks of institutional land so that there will be adequate lands for the type of community or institutional uses that require significant sites, then it is hard to see how the building of a hotel interferes with that object to any lesser extent than building a small amount of houses with a similar footprint and scale. Slicing a piece of the site off for a hotel does no more damage, necessarily, to the integrity of the site than slicing a piece off for housing development. Likewise, and to the extent that the maintenance of open space, even though not publicly accessible, may be a desirable end, then it is not immediately obvious why allowing a hotel or a funeral parlour to be built on a part of a site causes any more harm to the availability of that open space than building housing to the same scale. There may, of course, be other possible reasons why Z15 zoning might have been considered to be a good idea. The problem is that none of them are apparent on the face of the Development Plan. Likewise, there may be reasons why it was considered that hotels, funeral parlours and the like ought be legitimate "open for consideration" uses but housing to the same scale and in the same circumstances not so. Again, no such reasons are apparent from the Development Plan.

9.10 It seems to me to follow that the overall policy inherent in Z15 is justified. It is permissible to seek to retain a sufficient amount of land necessary to provide for the kind of institutional and community services which ought to be provided close to where people live. That overall policy objective is well within the scope of the delegated authority given to Dublin City Council under the 2000 Act. However, given that the Z15 zoning itself permits, admittedly in limited and restricted circumstances, development which is not directly associated with an enhancement of the community and institutional use of the lands, no reason is given as to why housing is excluded. I do not rule out the possibility that there might be such a reason. However, it is impossible to assess whether there is a valid reason for that aspect of the measure (the exclusion of residential) when one does not know the reason which the elected members felt required such a measure in the first place. In order to assess whether the reason might justify the measure, it is necessary to know the reason in the first place.

9.11 In those circumstances I am not satisfied that adequate reasons have been given for the combined set of measures contained in zoning Z15. That situation seems to me to derive from the fact that the elected members, as was their undoubted entitlement, did not accept the views of the Manager and senior planners and chose instead to amend the plan by the exclusion of housing as an "open for consideration" use but, in so doing, did not put forward any reason as to why that measure should be adopted.

9.12 It follows that that absence of reasons meets the test which I have already identified. It gives rise to a situation where it is not possible to assess whether that particular aspect of the measure is lawful, for it is not possible to ascertain the reason for it in the first place. On those grounds alone, it seems to me that, subject to issues such as standing and discretion, the Sisters of Charity must succeed at least in part. I will turn, in due course, to the appropriate form of relief. However, it must immediately be noted that there are certain consequences of that finding. Much of the debate on some of the other issues centred on the extent to which it might be said that the Development Plan amounted to an impermissible interference with the constitutional property rights of the Sisters of Charity or with such rights as arise under the ECHR as are capable of enforcement in the light of the European Convention on Human Rights Act 2003. However, it seems to me that without knowing the reason(s) why a most important aspect of the measure (the absence of residential being open for consideration) was included, it may be difficult to reach any assessment on those matters.

9.13 That is a question to which I will turn in due course. There are, however, some further aspects of these proceedings with which it is now necessary to deal. I, therefore, turn next to some of the issues which arise under the heading of certainty and prematurity.

10. The Requirement for Certainty
10.1 It is possible to deal with one specific issue in fairly straightforward terms. One curious anomaly of the Development Plan is that, despite the fact that housing is not an "open for consideration" use in Z15, the plan still makes reference to specific provisions referable to social and affordable housing. It needs to be recalled that the obligation to include, in a planning permission which is concerned with housing development, for the provision of some of the land for social and affordable housing at a pre-development permission price (or for other similar measures to facilitate the provision of such housing) is an innovation introduced into the planning code through the introduction of Part V of the 2000 Act which was commenced on the 1st November, 2000. However, those provisions are only relevant in cases where housing development is to take place. They have no relevance in respect of any other type of development. It follows that it is, quite frankly, irrational to include a provision for social and affordable housing in a development plan zoning which does not contemplate any possibility of planning permission being given for housing in the first place.

10.2 It is easy to see how the difficulty arose. In its earlier form, Z15 did allow for the possibility of residential development and, presumably with that in mind, a provision in respect of social and affordable housing was included. Clearly when the resolution to delete the reference to residential was moved no one thought to also exclude the reference to social and affordable housing. While, at one level, such an error may be understandable it does need to be said that the formulation of a development plan is an important exercise by elected members of a significant legal power. It is not too much to ask, where the elected members choose, as is their right, to go against the advice of the Manager and senior planning officials, that at least care is exercised to ensure that any amendment thus passed is coherent in the sense that any necessary consequential changes are also addressed in the same amendment. That clearly did not take place here. It seems to me that, in those circumstances, there is no rational basis for the inclusion of the reference to social and affordable housing and that that reference in the Development Plan must be quashed.

10.3 A second relatively straightforward issue concerns the statement in the Development Plan which, on one view, purports to exclude the possibility of the elected members engaging in the material contravention procedure. The relevant provision, at the end of section 15.1 entitled "zoning principles", reads as follows:-

      "Notwithstanding the foregoing, permission will not be granted for any development which materially contravenes the zoning of the site of the proposed development."
In that context it needs to be recalled that the 2000 Act permits elected members, following a designated statutory procedure described earlier, to grant a planning permission even though it is in material contravention of the relevant development plan. There is a logic to that procedure whatever may be its political merits. As the development plan is a matter for the elected members, it is logical that planning officials (who deal with all planning permission applications) are not permitted to deviate in a material way from a development plan which was not of their making. However, given that the boundary of the planning officials' authority is defined by the development plan there is a logic in saying that the elected members who made that plan can permit a deviation from it for those same members could have made the plan differently in the first place.

10.4 However, the point which arises here is that the entitlement of the members to deviate from the development plan is enshrined in statute. The elected members have such a discretion; they cannot take that discretion away from themselves. It was argued on behalf of Dublin City Council that the challenged provision of the Development Plan was really meaningless in that it could not, it was accepted, prevent the members from exercising a discretion, in accordance with the statutory process and within the terms of what is permitted under statute, to allow a material contravention. That that is so can hardly be doubted. If the statute confers an entitlement on the elected members then they cannot give it away. However, it seems to me that that answer begs the real question. Why is the provision there in the first place if it has no meaning? It is true that in respect of any aspect of the zoning of Dublin City (or indeed any other local authority) it is not possible to give a planning permission which contravenes in a material fashion the development plan without going through the material contravention process. Why then is specific mention made in the fashion already cited under Z15 and not made in respect of any other zoning if, in truth, the position is the same in all cases being that material contravention is possible? It seems to me that the only reasonable interpretation to place on the presence of the challenged provision in respect of Z15 (and its absence in respect of all other zones) is that it is intended to convey a prejudgment on the part of the elected members in respect of any future material contravention application and as, perhaps, a warning that no such applications will be entertained. On that basis it is clearly impermissible as an unlawful fettering of the elected members' discretion. It seems to me, therefore, that that provision should also be quashed.

10.5 The other issues which arise under this heading are concerned with the extent to which a local authority must have evidence or materials available to it in order to justify either some or all of the contents of a development plan. It seems to me that the starting point has to be to acknowledge that much of what is contained in a development plan is, for the reasons which I have already sought to analyse, either largely or significantly policy based. It follows that it is only where the plan gets down to nuts and bolts that there is a need to examine the considerations which went into the formulation of the measures adopted as a means of implementing the policy. This is in distinction to those elements of the relevant plan which involve simply the choice of policy. Furthermore, having regard to the wide discretion which a local authority has, it is clear that the sort of reasons which might justify particular measures can vary enormously. The extent to which it may be necessary for the local authority to have some evidence or materials to justify a particular measure will, therefore, depend in significant part on the reasons for the measure concerned. On the basis of my earlier analysis it is not possible to tell, with any degree of accuracy, what reasons motivated the controversial measures contained within zoning Z15 in this case. It follows that it is not possible to ascertain whether, and if so to what extent, evidence or materials of any particular type might have been required. It seems to me to follow that, unless and until zoning bearing the features which are in controversy in this case is adopted with adequate reasons, it is not possible to analyse whether, and if so to what extent and of what type, evidence and materials are required to justify the conclusions which are inherent in those reasons. In the light of that finding I leave over to another day any of the other issues which arise under that heading. It is next necessary to tum to the question of standing.

11. The Question of Standing
11.1 As already highlighted, an issue has been raised as to the standing of the Sisters of Charity to advance their claims in these proceedings. That issue is essentially twofold in nature. First, it is .said that the Sisters of Charity have no standing and are instead seeking to rely on jus tertii or the rights of third parties in order to ground their claim against Dublin City Council. Second, it is said that the claim is premature in the sense that any effect on the property of the Sisters of Charity by virtue of the Development Plan is merely contingent and can only crystallise once an application for planning permission has been brought and, presumably, refused on the basis of the contents of the plan. In the absence of such an application or other direct impact arising out of the Development Plan, it is contended that the Sisters of Charity lack the proper standing to advance their claim.

11.2 I propose taking each issue in turn. In relation to the jus tertii point, a number of figures are instructive. It was said that 77% of all privately owned lands which are zoned Z15 are held by religious institutions. That amounts to 51% of the total lands zoned Z15. Of the c. 780 hectares of land which is covered by Z15, the Sisters of Charity hold approximately 43.7 hectares, or 5.5% of the total lands. In turn, the Sisters hold less than half a percent (c. 0.44%) of the entire lands which are the subject of the Development Plan. Although there is some dispute between the parties over the accuracy of these figures, the general vista is nevertheless clear. Dublin City Council argues that to allow the Sisters of Charity to maintain their claim would be to permit a form of quasi-class action to be brought.

11.3 While the concept of a class action as such is unknown under Irish law, O. 15, r. 9 of the Rules of the Superior Courts provides a mechanism for the bringing of representative actions by one or more persons who may, with the authorisation of the court, bring a claim on behalf, or for the benefit, of all interested persons. However, such an action requires an application to court. There has been no such application in these proceedings, nor did I understand the Sisters of Charity to seek to advance a claim otherwise than on its own behalf.

11.4 In this regard, the decision in Cahill v. Sutton [1980] I.R. 269 is of note. The facts of the case were somewhat novel. The plaintiff sought to advance a personal injury claim against her doctor. The doctor concerned successfully raised the Statute of Limitations. The plaintiff then sought to argue that the statute was unconstitutional for the reason that it did not permit an exception for claimants who did not become aware of their injury until after the period of limitation had expired. The plaintiff accepted that she was not such a claimant as she had been aware of her injury prior to the expiration of the period. Henchy J., at p. 280, summarised her position in the following terms:

      "[...]the plaintiff is seeking to be allowed to conjure up, invoke and champion the putative constitutional rights of a hypothetical third party, so that the provisions [complained of] may be declared unconstitutional on the basis of that constitutional jus tertii-thus allowing the plaintiff to march through the resulting gap in the statute. The question which the Court has to consider is whether such an indirect and hypothetical assertion of constitutional rights gives the plaintiff the standing necessary for the successful invocation of the judicial power to strike down a statutory provision on the ground of unconstitutionality."
Henchy J. concluded, at p. 286, that the test to be applied in such cases was the following:
      "The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person's interes.ts have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute.

      On that test the plaintiff must be held to be disertitled to raise the allegation of unconstitutionality on which she relies."

11.5 In light of that decision, the court ought to confine itself to a consideration of the specific circumstances of the case, as advanced by the Sisters of Charity, and which bears on their situation. This brings the second issue of standing into consideration. There is no question but that any effect caused by the Development Plan is presently contingent and is therefore merely an apprehension of damage. The proper approach to be taken in such a situation is informed by the decision in East Donegal Co-Operative v. Attorney General [1970] IR 317, at p. 338, where Walsh J. made the following statement of principle:
      "Rights which are guaranteed by the Constitution are intended to be protected by the provisions of the Constitution. To afford proper protection, the provisions must enable the person invoking them not merely to redress a wrong resulting from an infringement of the guarantees but also to prevent the threatened or impending infringement of the guarantees and to put to the test an apprehended infringement of these guarantees."
11.6 Thus, by that standard, even in circumstances where the Sisters of Charity may only be able to point to a threatened or impending infringement of constitutional rights, they have standing to bring an action. The question as to whether the Sisters of Charity have the necessary standing is thus intertwined with the question of the nature of the rights said to be affected, to which I will now turn.

11.7 However, before doing so, one further aspect of standing deserves further comment. In East Donegal Co-Operative, also at p. 338, the court expressly refrained from making any finding as to the existence or otherwise of an actio popularis, or right of action entitling any person who is a citizen to challenge any Act of the Oireachtas. I similarly refrain from making any such finding. Nevertheless, it is clear that standing is far from a rigid settled concept. There are numerous examples in the case law where the courts have adopted a flexible approach which is based on the circumstances of the individual case and the interests of justice generally.

11.8 In addition, it does need to be noted that a party who claims that a measure is discriminatory against a class must necessarily be entitled, as a member of the class concerned, to point to the differential effect of the relevant measure on the class of which the plaintiff is a member compared with the population as a whole. Such a party is not, in my view, in those circumstances relying on the rights of others but rather is using the fact that the measure affects one class in a different way than the remainder of the population as evidence of the fact that the measure may be said to discriminate against the class in question. To take a hypothetical example it might be appropriate to consider a measure whereby some significant benefit was conferred on persons selected by a form of criteria set out in statute. No one individual would have the right necessarily to be selected. However, it might well be said that the criteria should either be non-discriminatory or that any distinction between individuals inherent in the criteria should be objectively justified and proportionate to whatever ends might be involved. The mere fact that the application of the criteria to an individual did not result in that individual being selected could hardly, of itself, be considered grounds for finding that that individual was discriminated against. On the other hand if the individual concerned was able to demonstrate that the criteria, for no justifiable reason, and in a significant and disproportionate way, led to a significant variation in the extent to which persons of a type or class of which he was a member would qualify compared with the extent that others (outside the class) might qualify, then the case might have significantly greater merit. Undoubtedly a plaintiff attempting to make such a case would have to produce an analysis of how the criteria operated and demonstrate that the relevant criteria had the discriminatory effect contended for. In so doing, the plaintiff would undoubtedly refer to the effect of the criteria on all of the members of the class of which he claimed to be a member. However, in so doing the plaintiff would not necessarily be seeking to rely on rights of others which he did not himself possess (as in Cahill v. Sutton) but rather would be relying on the effect on the class as a whole (of which he is a member) as demonstrating discrimination. For those reasons it does not seem to me that the Sisters of Charity would lack standing to make any appropriate case based on a contention that measures complained of affected, in an impermissible and disproportionate way, religious orders by producing figures which sought to establish that the measure concerned, for no sufficient reason, operated in a significantly more adverse way against the property interests of religious orders than others. I would not, on that ground, therefore, rule that the Sisters' case concerning discrimination lacked standing.

11.9 Likewise, I am not satisfied that there is any lack of standing based on the argument that the claim is premature. Development plans have a significant effect on the rights and obligations of individuals. They form an important part of the planning permission infrastructure. While it is true that permissions can be granted under the material contravention route and that development plans can be amended and are periodically revised, there is no doubt but that the possibility of a party obtaining beneficial planning permission can be significantly affected by the contents of a current development plan.

11.10 The amount of understandable public controversy in recent years as to how development plans came be formulated and as to what are said to have been the consequences of bad (and in some cases allegedly corrupt) decisions made in the course of the adoption of development plans demonstrates their importance. It seems to me that any party affected by a development plan has standing to challenge the plan for immediately after its adoption the planning status of any land owned by the individual concerned is affected even in the absence of an unsuccessful planning application. It is true, for the reasons already analysed, that local authorities enjoy a very wide discretion as to how to formulate development plans. The circumstances in which such plans can be challenged are, therefore, limited. However, the right to challenge, notwithstanding that the circumstances in which such a challenge can be mounted are limited, is, in my view, available to anyone whose rights are affected by the plan. For those reasons it seems to me that the Sisters of Charity have the necessary standing to maintain these proceedings.

11.11 I have already briefly adverted to the difficulties which may be encountered in assessing the constitutional and ECHR arguments raised by the Sisters of Charity given the absence of reasons for at least certain aspects of the measures contained in the Z15 zoning. Notwithstanding those difficulties, it does seem to me to be appropriate to set out the basis of the claims made under those headings before considering whether it is possible, in the absence of reasons, to determine those claims. I, therefore, turn first to the constitutional claims.

12. Constitutional Claim
12.1 The Sisters of Charity rely on three discrete articles of the Constitution, namely Art. 40 on personal rights, Art. 43 on private property and Art. 44 on religion. The specific provisions of those articles relied on are in the following terms:

      "Article 40

      3. 2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.


      Article 43

      1. 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

      1. 2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

      2. 1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

      2. 2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.


      Article 44


      2. 5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.

      2. 6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation."

12.2 The Sisters of Charity claim that the manner in which Dublin City Council has chosen to interfere with their lands through the designation of Z15 represents an unjust attack on their property rights as protected by the Constitution. While accepting that such property rights are not absolute, it is claimed that the interference lacks proportionality. That argument is further sought to be strengthened by reliance on the contention that the interference complained of amounts to a "diversion", contrary to Art. 44.2.6', of their property, as a religious denomination, for which neither necessary works of public utility have been demonstrated nor compensation paid.

12.3 Dublin City Council, in response, points to the fact that the Sisters of Charity seek to challenge a decision to zone their lands as Z15. There is, therefore, no challenge to the constitutionality of the Council's power to zone the Sisters' lands as such. On that basis, and as already described, subject to the Constitution, the Oireachtas is at large in deciding how to balance certain interests in legislative measures. This function is said to necessarily involve a balancing exercise with which it is not appropriate for the courts to interfere. Given that the court found in The Central Dublin Development Association v. Attorney General [1975] 109 ILTR 69 that the right to implement development plans as such was not repugnant to the Constitution, it is said that no constitutional challenge can be maintained against what amounts to an exercise by a local authority of a permissible statutory discretion.

12.4 Furthermore, it is reiterated that the nature and effect of zoning lands is simply to regulate the future development of lands. This being so, the Council argues that, as the Development Plan does not involve any purchase or transfer of the Sisters of Charity's lands, no "diversion" has taken place and the Sisters' ability to manage their affairs and to administer their property has not been abrogated. It was also contended that taking a broad view of the Constitution, Art. 44 could not have been intended to, nor should it be interpreted as, granting religious denominations a general exemption from the planning code.

12.5 One further point in respect of the Council's position is noteworthy. It is said that, based on the percentage size of the Sisters' affected property in respect of the plan as a whole, the Council point to a disproportionality which would arise were such a perceived adverse impact on a small interest to be found to be sufficient to displace the entire Development Plan.

12.6 Returning for a moment to Central Dublin Development Association, Kenny J., at p. 20, set out a number of apposite conclusions in relation to property rights under the Constitution. They are in the following terms:

      "In my view an analysis of the text of the Constitution and of the decisions on it lead to these conclusions:

      (1) The right of private property is a personal right;

      (2) In virtue of his rational being, man has a natural right to individual or private ownership of worldly wealth;

      (3) This constitutional right consists of a bundle of rights most of which are founded in contract;

      (4) The State cannot pass any law which abolishes all the bundle of rights which we call ownership or the general right to transfer, bequeath and inherit property.

      (5) The exercise of these rights ought to be regulated by the principles of social justice and the State accordingly may by law restrict their exercise with a view to reconciling this with the demands of the common good.

      (6) The Courts have jurisdiction to inquire whether the restriction is in accordance with the principles of social justice and whether the legislation is necessary to reconcile this exercise with the demands of the common good.

      (7) If any of the rights which together constitute our conception of ownership are abolished or restricted (as distinct from the abolition of all the rights), the absence of compensation for this restriction or abolition will make the Act which does this invalid if it is an unjust attack on the property rights."

12.7 The overlying constitutional architecture is, therefore, relatively well settled. The Sisters of Charity, like any other property owner, have no absolute property rights. It follows that the Development Plan as such, which contains restrictions on the way in which property is likely to be permitted to be developed, may, at least in principle, affect the value of property owned by the Sisters. Leaving aside for the moment the narrow challenge based on Art. 44.2.6°, the remaining constitutional challenges are based on a contention that the manner in which the current Development Plan affects the property rights of the Sisters of Charity amounts to a disproportionate and constitutionally impermissible interference with those rights.

12.8 One preliminary objection raised on behalf of Dublin City Council needs to be addressed at this stage. As noted earlier, Dublin City Council questions the extent to which Z15 zoning in the manner specified in the Development Plan amounts to a truly significant change, insofar as it affects the lands of the Sisters of Charity, from the various previous forms of zoning into which much of the lands in question were placed in previous development plans. The history of that previous zoning is set out earlier in this judgment. In addition, the submissions made by Ms. Byrne, the planning consultant retained on behalf of the Sisters of Charity, have also been quoted. It is clear from those submissions that, in the view of the Sisters, there was a gradual increase, from plan to plan, of the extent to which the zoning of institutional lands impacted on the utility and value of the Sisters' property. Ms. Byrne complained about the restrictive nature of the 1991 plan which was said to have been compounded by the provisions of the 1999 plan and especially by the contents of the plan which was in place between 2005 and 2011. Without necessarily agreeing with every aspect of that submission, it does seem to me that it accords with what in fact occurred. As the zoning of institutional lands evolved from plan to plan, it does seem that there were changes to the precise manner in which institutional lands were treated.

12.9 It is against that background that it is necessary to assess the argument made by Dublin City Council that it is, in essence, too late to now complain about the way in which institutional lands are zoned for, it is said, much of the substance of the complaint currently made would have applied equally to previous plans. I am not sure that it is possible to minimise the extent of the changes introduced in the zoning of institutional lands by Zl5 in its current form in quite the way argued for by Dublin City Council. In a number of respects the current Development Plan provides for a significantly more restrictive zoning than any of the previous plans. Two examples will suffice. The first is the exclusion of residential as being open for consideration in the manner already analysed in some detail. On any view, that amounts to a significant further restriction. Second, there is the narrowing of the criteria for permitting significant development when institutional or community use is no longer required. I have already touched on the argument as to what the relevant provision actually means. It seems to me that the wording of the provision in question requires, in order that the possibility of a change of use by the adoption of a masterplan to arise, that all possible institutional or community uses for the lands in question be ruled out. Such a task would, in my view, place an extremely high hurdle in the way of the owner of any Z15 lands in seeking to achieve such a permission. I am not now concerned with whether such a high hurdle is justified as being proportionate. It is simply sufficient to note that that hurdle represents a significant heightening of the bar. It cannot, therefore, in my view be said that Z15 zoning does not represent a material additional set of restrictions above and beyond those which were to be found in the comparable zoning applicable to much of the Sisters of Charity's lands in previous development plans. So far as there might be an argument to the effect that a party would be precluded, by acquiescence or otherwise, from challenging an aspect of a development plan which was in practical terms in much the same form as the zoning applicable to the same lands in a previous development plan, then it seems to me that the factual basis for such an argument is not present in this case. It follows that it is unnecessary to consider whether a challenge which might otherwise be successful to an aspect of a development plan might fail, as a matter of law, on such a basis.

12.10 It follows that it would, ordinarily, be appropriate to consider, on its merits, the argument made on behalf of the Sisters of Charity that Z15 zoning in its current form represents a disproportionate interference with their property rights. However, in that context it is necessary to return to the problem already adverted to which arises by virtue of the lack of reasons.

12.11 There can be little doubt that zoning issues can have a significant effect on the value of property. Whether one views a planning permission which is, of course, closely connected with zoning, as a benefit to be conferred or views any restrictions on obtaining a planning permission (including those brought about by relevant zoning) as a legitimate and proportionate limitation by the State of the rights to private property (a view which, on balance, I prefer) (see Central Dublin Development Association), it seems to me that there must be some proportionality between the aims of the planning regime as a whole and the effect on individuals whose position may be affected by decisions made in that planning process. However, it does not seem to me to be possible for the court to carry out the necessary analysis to determine whether the principle of proportionality has been met without the court at least having sufficient reasons for the measure under challenge, for it is entirely possible to envisage circumstances where, provided that the end sought to be achieved is sufficiently significant, highly restrictive measures may be justified.

12.12 The total prevention of development in areas of high scenic amenity would be a clear case in point. As another example, given the desirability of housing being concentrated, at least in the main, in areas which can readily be serviced, the designation of areas zoned for housing as defined locations (and by implication the necessary exclusion of other areas for either all housing or all but a limited form of housing) can undoubtedly have a very significant effect on property values. However, in such a case it is likely that the development plan will set out a reasoned basis for zoning a certain amount of land and give some further reasons for choosing the lands which have been zoned for housing.

12.13 However, where there are no, or no adequate, reasons for particular aspects of a development plan then it is impossible for the court to carry out that exercise. While a very large measure of discretion will, of course, be given to local authorities as to the formulation of a development plan within the terms of the 2000 Act, that discretion is nonetheless not absolute and it must be open to the court to assess whether it has been lawfully exercised. Without reasons it is not possible to form such a view or to determine whether any adverse consequences to the rights of individuals concerned, whether guaranteed under the Constitution or under the ECHR, have been justifiably interfered with in a proportionate way. It seems to me, therefore, that I neither should nor could answer those questions which arise under the constitutional and ECHR headings in this case without having adequate reasons. Having concluded that adequate reasons have not been given, it seems to me that those questions should not be addressed. Whether they will need to be addressed in the future will depend on the position that Dublin City Council takes in the light of the orders which I make stemming from my finding of a lack of reasons.

12.14 If Dublin City Council chooses to maintain zoning Z15 in its current formulation and gives reasons sufficient to assess the lawfulness of that decision, then it will, at that stage, be possible to form a proper judgment on whether the ends sought to be met by those reasons provide an adequate justification for the restrictions imposed having regard to the undoubtedly wide discretion which, for understandable reasons, planning legislation gives to local authorities in relation to the formulation of development plans.

12.15 It follows that it is not possible to deal with those aspects of the claim brought by the Sisters of Charity under the proportionality heading unless and until proper reasons are given. However, it does seem to me to be appropriate to make a number of observations concerning the case made under this heading. As part of the argument put forward to the effect that Z15 zoning amounted to a disproportionate interference with the property rights of the Sisters of Charity a number of points are made. First, attention was drawn to the figures, already quoted, for the effect of Z15 zoning on the lands of the Sisters of Charity and on lands owned by religious orders generally. On the other hand Dublin City Council drew attention to the fact that many types of institutions, such as schools, hospitals, facilities for the elderly and the like, have traditionally been owned and operated by religious orders. If, therefore, it is said, zoning lands in current institutional and community use in such a way that such a use is to continue is justified at the level of principle, it is hardly surprising that such a zoning would impact on the types of institutions (principally religious institutions) who have historically owned lands used for that type of purpose. Viewed in that way it is argued that the zoning is not discriminatory but instead merely reflects historical fact.

12.16 In the light of that argument, the Sisters of Charity sought to produce evidence which suggested that not all lands that might qualify for Z15 zoning were so zoned and sought to question the selection basis for the purposes of arguing that the amount of religious owned land (and in particular land owned by the Sisters of Charity) that was included was not capable of being explained solely by reference to the sort of historical factors to which I have adverted.

12.17 In the context of that debate, counsel on behalf of Dublin City Council made the point that at least much of the figures relied on by the Sisters of Charity were compiled after the Development Plan was adopted. On that basis it was argued that such figures could not legitimately be used to suggest that the Development Plan was unlawful for the relevant materials were not put before the local authority as part of the process leading to the adoption of the Development Plan and were not, therefore, considered by the elected members when making any decisions in relation to the contents of the Development Plan.

12.18 Second, attention was drawn by Dublin City Council to the fact that not all lands in institutional use (and which were expected to remain in such use) were included in the ZIS zoning. For example, where a school was located in a Georgian area, the school concerned was zoned with reference to its Georgian rather than its institutional character. It was said that any analysis of the extent to which religious owned lands were zoned in particular ways therefore needed to take that factor into account. In addition, it was said that any questions raised concerning the contention on the part of the Sisters of Charity that there was no explanation for what were said to be anomalies in the choice of lands included either within or outwith Z15 also needed to take into account that factor.

12.19 I have already noted that it is impossible to reach a definitive conclusion as to whether, and if so as to what extent and of what nature, it is necessary for a local authority to have evidence or materials sufficient to justify at least certain aspects of the detailed implementation provisions contained within a development plan, without having the reasons as to why the relevant measures are considered desirable in the first place. For similar reasons, it does not seem to me to be possible to determine the extent to which it would be necessary for a party, who might wish to challenge a development plan, to put forward any evidence or materials on which it might wish to base its case during the process leading to the adoption of the development plan concerned without the reasons why the aspect of the development sought to be challenged might have been adopted by the elected members being known. Without knowing why the members might propose to include a particular measure, it is not possible for those, who might wish to seek to persuade the elected members not to include the measure concerned, to know with any degree of precision what evidence or materials might be relevant to the consideration of the elected members. Where there is a reasoned proposal before the Council it would seem to me that it would, ordinarily, be incumbent on any person wishing to oppose the adoption of that measure to put forward any evidence or materials on which they might wish to rely. It follows that a failure to put forward such materials might well place a significant barrier in the way of such an opponent introducing evidence and materials (which could have been produced during the process) as a basis for criticising the result of that process. Where, however, as here, and for the reasons which I have already sought to analyse there were no sufficient reasons given for at least aspects of the measures under challenge, then it is difficult to criticise objectors such as the Sisters of Charity for producing evidence after the event.

12.20 Furthermore, it seems to me that the absence of adequate reasons makes any meaningful analysis of the factual issues concerning discrimination, raised by the Sisters of Charity, incapable of adequate resolution. In truth, all of the issues under this heading can be described as ones in which the Sisters of Charity claim that aspects of the Development Plan discriminate against them (and like religious orders) while Dublin City Council argues that any additional adverse effect on the Sisters of Charity and like religious orders is but a by-product of historical land use in the context of the legitimate objectives of the current Development Plan. However, without knowing the precise end sought to be pursued by certain aspects of the Z15 zoning, it is impossible to reach any conclusion as to which of those contentions is correct.

12.21 Finally, it is appropriate to deal with the argument under Art. 44.2.6°. The text of that provision has already been cited. What is outlawed by that provision of the Constitution is the "diversion" of the property of any religious denomination or educational institution except where the diversion concerned is necessary for works of public utility and on payment of compensation. The real debate between the parties under this heading was as to the meaning of the word "diversion". Is it merely an antiquated form of a description for something in the nature of compulsory acquisition? Can property be said to have been diverted by some lesser form of interference?

12.22 On the Sisters' case, the extent of the interference with their ability to use their lands brought about by Z15 zoning amounts to such a significant restriction on their ability to use the lands in question in a beneficial way such as to render it a "diversion" of the lands in question. Obviously Z I 5 zoning does not carry with it any compensation nor could it be said that the zoning is necessary for works of public utility. It follows that if Z15 zoning does amount to a diversion, then it is an impermissible diversion having regard to the terms of Art. 44.2.6°.

12.23 It does not seem to me to be necessary, for the purposes of this case, to reach a definitive conclusion on whether there might not be measures short of the full transfer of ownership of all interests in land or property away from a religious or educational institution that might amount to a "diversion" for the purposes of the Article in question. It appears likely, for example, that a requirement without compensation to enter into a form of lease which would give the right to occupy institutional property to some third party even though not removing full ownership would amount to a "diversion".

12.24 However, it does not seem to me that a restrictive form of zoning, otherwise justified and proportionate, could amount to a "diversion" for the purposes of the Article. The lands in question still remain fully owned by the institution concerned. The lands can, in the main, still be used for their existing purposes be it school, hospital or the like. Where it is necessary to further develop the lands for those institutional purposes, then permission can be obtained. Where some limited form of non-institutional development is found to be necessary to support the institution on the lands in question, then permission may also be granted. While Z15 is, undoubtedly, a significantly restrictive form of zoning, it seems to me that those restrictions fall far short of any type of transfer of the benefit of ownership of lands which might be regarded as a "diversion" for the purposes of Art. 44.2.6°, It seems to me that I should, therefore, dismiss that aspect of the claim made by the Sisters of Charity in these proceedings while at the same time indicating, for the reasons already analysed, that the arguments under all other aspects of the constitutional heading cannot be answered unless and until adequate reasons for at least some aspects of the Z15 zoning are given. It is next necessary to turn briefly to the argument under the ECHR.

13. Application of the ECHR
13.1 l do not think that I do an injustice to the arguments raised under this heading by indicating that they followed broadly the same line of country as those which were advanced on both sides under the constitutional heading (with the exception of the "diversion" argument). Both sides, of course, relied on the jurisprudence of the ECHR rather than the constitutional jurisprudence of the Courts of Ireland. Particular reliance was placed on the decision in Hutten-Czapska v. Poland (2006) 45 EHRR 301 in relation to Art. 1, which deals with property rights. The cases of Sporrong and Lonnroth v. Sweden (1982) 5 EHRR 35 and Buckley v. United Kingdom [1997] 23 EHRR 101 were cited in respect of the margin of appreciation given to national authorities in determining the public interest. Finally, in relation to equality, and discrimination on the grounds of religion in particular, attention was drawn to James v. United Kingdom (1986) 8 EHRR 123; Burden v. United Kingdom (2008) 47 EHRR 38; DH v. Czech Republic (2008) 47 EHRR 3; and to Orsus v. Croatia (2011) 52 EHRR 7.

13.2 However, it seems to me that a problem in reaching a definitive conclusion in relation to the arguments raised under the ECHR arises which is similar to that which I have already identified in respect of the constitutional argument arises. Without knowing the reasons in sufficient detail, it is impossible to identify with the necessary degree of precision the ends sought to be met and thus to analyse and assess whether the means adopted to achieve those ends are a proportionate interference with the property rights concerned. It follows that, for like reasons, it does not seem to me that it is either possible or appropriate to deal with the issues arising under the ECHR in the absence of adequate reasons. It remains to consider the discretionary grounds advanced on behalf of Dublin City Council.

14. Discretion and the Form of Order Appropriate
14.1 It is, of course, true that an order of certiorari is, in the terms of the jurisprudence, a discretionary order. I should start by noting that it seems to me that the term "discretion" can perhaps be misleading in this context. It is not that the court can decide simply to decline to make an order. Rather, the term "discretion" is designed to convey that the existence of the set of circumstances necessary to allow the court to reach the conclusion that an order might be made does not, of itself, necessarily give rise to an obligation on the part of the court to make the relevant order. Thus, judicial review orders are in a different category from, for example, claims for damages. In the ordinary way if a party establishes the necessary acts of negligence, causation and loss then that party is entitled, as of right, to an award in damages in the absence of some legally recognised defence such as, for example, the claim being barred under the Statute of Limitations or the existence of an estoppel.

14.2 On the other hand, the conditions necessary to permit an order of certiorari to be made do not carry with them the same necessary entitlement to the order. What is conveyed by the term "discretion" is that the order is non-automatic in that sense. However, the circumstances which allow the court not to make an order which would otherwise be justified must be such as to derive from an important constitutional or legal value of sufficient weight to warrant not making an order otherwise justified.

14.3 There may, for example, be aspects of the conduct of the applicant concerned which would render it an abuse of process to permit the order to be made. The factors relied on under this heading by Dublin City Council are as follows: that it would be completely disproportionate for the entire Development Plan, on which various other property owners have chosen to act or to refrain from acting, to be struck down on account of a grievance of an applicant which relates to less than .044% of the total land area zoned under the Development Plan; that although the Z15 zoning is substantially the same as in the previous zoning, the Sisters of Charity failed to take any proceedings challenging the previous plan; and/or that in all the circumstances of the case, the reliefs sought should be refused. The second of those factors has already been addressed. The first factor seems to me to be more concerned with the form of order which can and should be made rather than presenting a basis for declining to make any order.

14.4 I am, therefore, not satisfied that any of those factors, whether taken individually or collectively, could amount to a sufficient reason for not granting an order of certiorari that was otherwise justified. 1 am not, therefore, satisfied that there are any discretionary factors which would be sufficient to justify not making an order in this case.

14.5 As indicated, my primary finding in this judgment is that the Sisters of Charity have standing to raise, and have successfully established, that there are insufficient or inadequate reasons to be found either in the Development Plan or in other accessible materials, such as would justify Z15 zoning in its current highly restrictive form. It should be pointed out that is not to say that there may not be such reasons but rather that they have not been given. In addition, I have indicated that, independent of that finding, two aspects of Z15 zoning are impermissible being the irrational inclusion/retention of a reference to social and affordable housing in the absence of residential being an open for consideration use, and the purported prejudgment of any application to invite the elected members to allow a material contravention in accordance with the statutory regime in that regard.

14.6 It does not seem to me that it would be possible to attempt to disentangle those aspects of the Z15 zoning for which adequate reasons have not been given from the generality of the zoning as a whole. As pointed out by counsel for Dublin City Council, a development plan necessarily has interactions between each of its parts. There may be very minor discrete aspects which could be excised without doing any damage to any greater aspect of the plan as a whole. For example, the deletion of the two items just referred to can easily be achieved without running the risk that other aspects of the plan would thus be altered.

14.7 It does not seem to me that it would, therefore, be possible to interfere with the current text of Z15 zoning in a way that would not involve the court in rewriting the Development Plan and thus trespassing on the legitimate jurisdiction of the elected members. It seems to follow that the Z15 zoning as a whole must be quashed. However, it equally seems to me that the elected members must be entitled to consider what to put in its place or indeed to readopt it as it is but with reasons. It may, therefore, be that Z15 zoning in its current form but with adequate reasons may be adopted. In that eventuality it may be necessary for the court to again consider, in the light of those reasons, those aspects of the case which it was not possible to determine definitively without reasons being given. On the other hand, the elected members may choose either to abandon Z15 zoning as a whole or to pass a new form of differently worded Z15 zoning with adequate reasons for the formulation that would then come into play.

14.8 In those circumstances it seems to me that the appropriate order to make is one quashing those aspects of the Development Plan which deal with Z15 zoning and referring the matter back to the elected members for the purposes of formulating such provisions in respect of the lands currently covered by Z15 zoning as seem to those elected members to be appropriate. I would anticipate that in considering the matter once referred back, the elected members would have regard to the provisions of this judgment and in particular, would have regard for the need to provide reasons in accordance with the findings in this judgment which would be sufficient to allow, if a further challenge be made, the court to make the assessments of the border issues raised in the proceedings which were not possible on this occasion.

15. Conclusions
15.1 I propose to give the parties an opportunity to consider the terms of this judgment. Apart altogether from the matter of costs, I will require the parties to make submissions on the precise form of order which flows from this judgment.

15.2 Subject to a timeframe which I will discuss with counsel, it will be my intention that this matter be put in for further consideration in early course but in the meantime I would invite the parties to engage in constructive correspondence concerning the precise terms of that order.

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