ACT 2000 BETWEEN MKN PROPERTIES LIMITED AND J. MURPHY (DEVELOPMENTS) LIMITED APPLICANTS AND FINGAL COUNTY COUNCIL RESPONDENT Date of impugned decision: Date proceedings commenced: Date of main hearing

some future stage when the next development plan is adopted”, that this “does not entitle [an] applicant to compensation even though the value of [the] land may have been reduced as a result”, that “the power to make a development plan is [a] function of the elected members”, that [w]hen the Council exercises these ... powers, it acts as of necessity as a deliberative assembly”, that “any court must be very slow to interfere with the democratic decision of the local elected representatives entrusted with making such decisions by the legislature”, that [t]hese sentiments now apply with even greater force following the subsequent adoption of Article 28A.1 of the Constitution in 1999 with its recognition of ‘the role of local government in providing a forum for the democratic representation of local authorities in exercising and performing

local level powers and functions conferred by law’”, that “one key object of ... core strategy provisions is to ensure that development plans take proper account of projected population growth in any given areas”, that “[t]his in turn implies that the promiscuous and unlimited rezoning of land for residential land – which in the past was often an unhappy feature of the entire development plan process – should no longer be permitted”, and that “the elected members were empowered by law to make a democratic decision regarding the scope of the development plan and this they duly did”. It is the function of a trial court to apply such principles here. While I appreciate the sincerity of the applicants as landowners seeking to develop their properties, and the very considerable skill and subtlety mobilised in presenting the case on their behalf, the primary legal question here is whether any sufficiently convincing legal reason has been demonstrated to displace the foregoing. Geographical context 2. The challenge involves objections to two elements of the current Fingal Development plan (https://www.fingal.ie/development-plan) regarding lands

Fosterstown. The lands are approximately adjacent to the following: https://maps.app.goo.gl/tjPEbaPnHyBpESrv

1. Facts
2. The applicants, MKN Properties Limited and J. Murphy (Developments) Limited, challenge the decision of the respondent, Fingal County Council, made on 24 February 2023 to make the Fingal County Development Plan 2023-2029 (2023 CDP) insofar as the council decided to (i) change the zoning on part of the applicants’ lands, situate

Fosterstown, Swords, County Dublin, from “RA Residential Area” to “OS - Open Space” and (ii) adopt map-based objective no. 38, as inserted by material amendment PA SH 8.5, in the development plan, in respect of those lands which sets a density range of 110-115 units per hectare. 4. The applicants are property developers and owners of lands

Fosterstown, Swords, County Dublin, which is within the functional area of the respondent. MKN Properties Limited owns approximately 6 hectares of the lands, while J. Murphy (Developments) Limited owns 4.405 hectares.

1. The Fingal County Development Plan 2017-2023 (2017 CDP) outlined that the council intended to adopt a series of masterplans as “an effective means of guiding new development and 2 providing essential social and physical infrastructure in a phased and sustainable manner”. These Masterplans would: “…consist of a written statement and a plan…indicating the objectives…for the proper planning and sustainable development of the area to which it applies…”
2. Chapter 4,

objective 27, outlined that it was an objective of the council to prepare and implement a masterplan for Fosterstown – the “Fosterstown Masterplan” (also marked on Map Sheet 8, MP 8.I).

1. A critical element of the case is that in May 2019, as part of the Swords masterplans, the Fosterstown masterplan was made by the council. The Fosterstown masterplan contains key green infrastructure objectives (which include the provision of high quality open space and objectives seeking to preserve and enhance trees and hedgerows) and key built form objectives (which include the provision of residential accommodation as a net density of 105-115 units per hectare).
2. The draft Fingal County Development Plan 2023-2029 (draft CDP) was published on 24 February
3. The draft CDP included objectives which sought to continue the implementation of existing masterplans – including the Fosterstown masterplan (as did the adopted 2023 CDP).
4. The draft CDP provided that the land-use zoning objective applicable to part of the Fosterstown Lands owned by the applicants, which had been zoned “RA - Residential Area” under the 2017 CDP would change to “OS - Open Space”, as indicated by green shading on land-use zoning Map Sheet
5. This reflected the approach/strategy for the proper planning and sustainable development of the area set out in the Fosterstown masterplan.
6. The applicants, through their planning and development consultants, John Spain Associates (JSA), each made a submission on the draft CDP to the council dated 12 May 2022 (under reference numbers FIN-C453-1029 and FIN-C453-932 respectively), and sought the retention of the “RA Residential Area” zoning objective.
7. In June 2022, ministerial guidelines on development plans were adopted.
8. The chief executive prepared a report, dated 28 July 2022, on the submissions made to the council on the draft CDP, which addressed submissions FIN-C453-1029 and FIN-C453-932, but which did not recommend any changes to the land-use zoning policy in respect of the applicants’ lands as proposed on Map Sheet
10. The elected members of Fingal County Council held a series of special council meetings in September and October 2022.

a special council meeting on 13 October 2022, a member of the council proposed motion no. 555, which proposed a material amendment inserting a map-based local objective

Fosterstown which provided for a density of 110-115 dwellings per hectare. The motion was premised upon a clear planning rationale. 14.

the meeting of 13 October 2022, Ms Roisin Burke, senior planner for the council, noted that the density proposed was in line with the Fosterstown masterplan, and that the council would continue to implement the masterplans and stated that a map-based objective was not required/necessary in this instance (in her view). 15. The elected members resolved to adopt the motion. 16. On 11 November 2022, the proposed material alterations (PMAs) to the draft CDP were published, and included inter alia, PMA PA SH 8.5, which sought to introduce a map-based objective generally in the terms of the wording of motion no. 555. 17. On 21 December 2022, the applicants each made a submission in similar terms to the council in response to PA SH 8.5 (under reference numbers FIN-C532-53 and FIN-C532-78, respectively), which appended a letter of legal opinion prepared by McCann FitzGerald LLP in support of the propositions advanced in the submissions. 18. The chief executive prepared a report on the material amendments and submitted this report to the elected members on 15 January 2023, and recommended that the CDP be made without the material alteration proposed. 19. On 21 February 2023, the elected members of the council considered certain motions in relation to the PMAs to the draft CDP, including motions nos. 208 and 209 in respect of the proposed adoption of material alteration PA SH 8.5. 20. Motion no. 209 to reject the chief executive's recommendation in respect of PMA PA SH 8.5 was put to a vote and the elected members passed the motion, with 16 councillors voting in favour, 13 against, and 7 abstaining. 21. The elected members resolved to make and adopt the development plan to include both (

1. i)the land-use zoning change and (
2. ii)the map-based density objective. 22. On 22 February 2023, the elected members resolved to adopt the 2023-2029 CDP, which took effect on 5 April 2023. Procedural history 23. These proceedings were issued out of the Central Office on 14 April 2023. 3 24. The matter was opened on 17 April 2023 before Meenan J. and was adjourned to 19 June 2023. 25. The applicants filed written leave submissions on 14 June 2023. 26. The ex parte leave application was heard on 18 September 2023 by Kennedy J., who granted leave on all grounds. The matter was adjourned to 14 November 2023. 27. On 27 September 2023, the applicants issued a notice of motion seeking certiorari of the respondent’s decision in line with the order of Kennedy J. granting leave. 28. The matter was adjourned for mention on 14 November 2023 to the 24 January 2024. It was indicated that there may be a change in solicitor for the applicants. The council also raised queries about service of the pleadings. 29. The matter was adjourned on consent from time to time thereafter. 30. A notice of change of solicitor was filed on 25 March 2025. 31. The matter was adjourned on consent on 1 April 2025 to 13 May 2025. 32. On 26 May 2025, the matter was adopted into the Planning and Environment List. 33. The matter was adjourned generally on 20 June 2025. 34. The matter was listed on 3 November 2025, for a status update on the proceedings and was adjourned to 17 November 2025. 35. On 1 December 2025, the matter received a hearing date of 22 April 2026. 36. On 20 March 2026 the applicants filed their written legal submissions. 37. On 23 March 2026, the matter was called over in the Planning and Environmental List. 38. On 31 March 2026, the applicants filed an affidavit exhibiting transcripts of relevant meetings of the council. 39. On 16 April 2026, the council served its written legal submissions. 40. The matter was heard on 22 April 2026. Judgment was reserved

the end of that hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have previously sought to make clear, insofar as any points advanced are not being accepted in this or any other given judgment, that is solely to do with the inherent merits of such points and is no reflection on those instructed to convey such points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to all concerned. 41. On 28 April 2026, a draft of the present judgment was sent to the parties to give an opportunity to identify any errors. The rules of engagement in such a situation are that the draft is without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate. 42. Any comments must be emailed to the court and uploaded to ShareFile in writing by the notified deadline, and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as: (

1. i)informing the court as to whether a formal judgment is required, and if so on what issues; (
2. ii)informing the court as to whether a judgment might be oral or written or partly in both modes; (iii) any typographical, factual or legal errors in the decision; (
3. iv)any redaction of personal information that the party wishes to request; (
4. v)in the event that the court proposes to place pivotal reliance on any authority or material not previously adverted to, as opposed to where such material merely reinforces a point that the court was making in any event, any comment as to why such material should not lead to the proposed conclusion; identifying points that the court proposes to address but that the parties consider it unnecessary to address; (
5. vi)requesting the court to decide a point that, while unnecessary to decide, is one the party considers could beneficially be decided; (vii) identifying significant procedural, factual or legal points that the party considers that the court was required to address but has not addressed or not provided reasons for; and (viii) any other suggestions as to the wording (as opposed to substance) of the decision if the proposed wording causes any significant issue for a party for any identified reason. 43. It is then entirely a matter for the court as to whether to list the matter for mention, or whether to simply give judgment with or without amendment to respond to any such comments or for any other reason that appears appropriate to the court. Any judgment may be given without further notice following the expiry of the specified period, whether comments are made or not. That period will not be extended save in exceptional circumstances. All parties involved are required to positively confirm to the court the position including if they have no observations on the draft legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a 4 concession which parties can engage with but must do so with immediate dispatch, discipline and focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to elaborate procedures

every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. Health Service Executive [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023)

para. 39); and still less should the procedure invite the perhaps “serious error, to which lawyers are prone, to approach any such case on the tacit assumption that only procedures which approximate to a criminal trial are fair, and anything which departs from that is somehow dubious” (O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780). 44. Draft judgments are not public domain materials and, while they can be shared between the lawyers concerned and their clients, subject to the following, it is inappropriate for any person to refer to them for any purpose other than to assist the court in relation to the finalisation of the formal judgment. Therefore anyone with information as to the text, content or proposed outcome of any draft is required not to publish or transmit such information to others save solely by way of private transmission for the legitimate purposes of assisting in the finalisation of the judgment and subject to a similar restriction on any recipient. Trial participants should take reasonable steps to keep drafts confidential. On this topic, see

torney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication of draft judgments is in the interests of the administration of justice; see also Baigent v. Random House Group Ltd [2006] EWHC 1131 (Ch), [2006] 5 WLUK 45,

§1above.

1. An Order of Certiorari by way of judicial review quashing the Respondent’s decision of 22 February 2023 to adopt map-based objective no. 38, as inserted by material amendment PA SH 8.5, in relation to Map Sheet 8 of the Fingal Development Plan
3. If necessary, an order of mandamus directing the Respondent to make the Fingal Development Plan 2023-2029 without map-based objective no. 38, as inserted by material amendment PA SH 8.
5. Such Declaration(s) of the legal rights and/or legal position of the Applicants and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the respondent as the Court considers appropriate.
6. A Declaration that Section 50B of the Planning and Development Act 2000, as amended, and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 and/or that the interpretative obligation set out in Case C-470/16 North East Pylon Pressure Campaign Limited v. An Bord Pleanála whereby in proceedings where the application of national environmental law is

issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9

Fosterstown, Swords, County Dublin from zoning objective RA-Residential Area to OS-Open Space breached the 5 ‘Development Plans, Guidelines for Planning Authorities’, June 2022 and as a result the Respondent was in breach of its obligations pursuant to section 28(1A) of the Planning and Development Act 2000 to have regard to ministerial guidelines, and to consider the policies and objectives of such guidelines, and was also in breach of its obligations pursuant to section 28(1B) insofar as it failed to provide any or any adequate reasons as to why the policies and objectives of such guidelines could not be complied with and is therefore unlawful, ultra vires, invalid and of no legal effect. 2. The Respondent’s decision to change the zoning of the Applicants’ lands set out

Core Ground 1 is invalid, ultra vires, and of no legal effect in that it unreasonably, irrationally and unjustly treated the Applicants’ land differently from other lands in the Swords area, and there was an absence of any, or any adequate reasons provided for the difference in treatment. 3. Insofar as the Respondent based its decision to change the zoning of the Applicants’ lands set out

Core Ground 1 above on considerations contained in non-statutory masterplans, the Respondent took into account irrelevant considerations, failed to take into account relevant considerations and was irrational and/or unreasonable.

1. In making the Fingal Development Plan 2023-2029, the decision to adopt map-based objective no. 38, as inserted by material amendment PA SH 8.5, is inconsistent with ministerial guidelines, and as a result the Respondent was in breach of its obligations pursuant to section 28(1A) of the Planning and Development Act 2000 to have regard to ministerial guidelines, and to consider the policies and objectives of such guidelines, and was also in breach of its obligations pursuant to section 28(1B) insofar as it failed to provide any or any adequate reasons as to why the policies and objectives of such guidelines could not be complied with and is therefore unlawful, ultra vires, invalid and of no legal effect.
2. The decision of the Respondent to adopt map-based objective no. 38, as inserted by material amendment PA SH 8.5, in the Fingal Development Plan 2023-2029 is invalid, ultra vires, unlawful and of no legal effect because the Respondent failed to consider, whether properly or

all, the proper planning and sustainable development of the Fosterstown area, in breach of section 12

Fosterstown as follows: Provide for well-designed housing

a density of 110-115 dwellings per hectare, which is in keeping with the masterplan and the enhancement of the character of the Key Town of Swords.” Domestic law issues

1. The issues are all pleaded as ones of domestic law, and divide between issues related to the zoning (core ground 1) and related to the map-based objective (core grounds 4 to 6). We can discuss the grounds under those two broad headings. I – Challenge to zoning decision (core ground 1) 6 Core ground 1 – zoning in alleged breach of guidelines
2. Core ground 1 is: “
3. In making the Fingal Development Plan 2023-2029, the Respondent’s decision to change the zoning objective of certain of the Applicants’ lands

Fosterstown, Swords, County Dublin from zoning objective RA-Residential Area to OS-Open Space breached the ‘Development Plans, Guidelines for Planning Authorities’, June 2022 and as a result the Respondent was in breach of its obligations pursuant to section 28(1A) of the Planning and Development Act 2000 to have regard to ministerial guidelines, and to consider the policies and objectives of such guidelines, and was also in breach of its obligations pursuant to section 28(1B) insofar as it failed to provide any or any adequate reasons as to why the policies and objectives of such guidelines could not be complied with and is therefore unlawful, ultra vires, invalid and of no legal effect.” 55. The parties’ positions as recorded in the statement of case are summarised as follows: “Core Ground 1 Development Plan Guidelines Applicants’ Position Subsection 28

Appendix 2 of the 2023 CDP, entitled ‘Implementation of Ministerial Guidelines’. It is observed that there is no challenge to this Statement in this case – for example, it is not alleged that same is inaccurate. Further, contrary to what the Applicants appear to suggest, the requirement under s.28(1B) comprises the provision of a ‘statement’ as to how s.28 guidelines were implemented or, if, in the Council’s opinion, not capable of implementation, the reasons for such an opinion. In this respect, and relevant to Core Ground 1 and Core Ground 4, the Council did not form such an opinion for the purposes of s.28(1B)(b) – rather, as the Statement demonstrates, it explained that the s.28 Guidelines were considered/implemented. 8 More generally, the Council, noting the deliberative nature of the decision-making function, and contrary to the Applicants’ claims, is not required to address each and very objective/policy or sentence in s.28 Guidelines for the purposes of s.28

the plan-making stage. In all cases, whether phasing is applied or not, development plans must build in sufficient flexibility to ensure that housing development not progressing on one or more sites cannot operate to prevent other suitable sites that may be developed within the life of the development plan, from coming forward. It is also best practice that in cases where land is zoned and has remained undeveloped and unserviced through one or more development plan cycles, with no prospect of being serviced within the six-year life of the development plan that is under preparation, alternative approaches must be considered:- (

1. i)alternative zoning objectives or (
2. ii)discontinuing the objective (See Appendix A).” 58. The applicants have pleaded that the land “is serviced and can be developed for housing within the life of the new development plan” and there was not any meaningful challenge to that. 59. As an overall point, the applicants’ complaints have to be read within the context of the broad powers of elected members to change zonings as referred to above: Killegland Estates Ltd v. Meath County Council [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023). 60. As to the meaning of “de-zoning”, the text and context of the guidelines and its obvious intention means the change of zoning from residential to something else. It does not mean removal of all zonings. But that said, the change in the present case is not the sort of de-zoning to which the guidelines are addressed. The guidelines, read in context, are talking about a situation where land is zoned for housing, serviced for housing, and then removed from a zoning category that would have permitted such housing to be actually consented. Here, the housing zoning of the overall development site is being preserved and all that is happening is that certain green corridors within that are being specifically zoned open space – but there would have to be open space anyway within the development site even if the zoning was unchanged. This is not in substance “de-zoning” in the sense of the guidelines – a conclusion reinforced by the fact that ministerial guidelines overall are specific on the need for open space within residential developments. So for that reason none of this properly arises anyway but if I am wrong about that I will go on to consider the applicants’ complaints. 61. Admittedly, the council’s “take” of the site for open space-type uses is potentially increased by specifically zoning certain areas for public open space and then potentially requiring other areas to be designated for recreation by residents of the development in the context of an individual planning application. But that is an option that is lawfully open to them because the ministerial guidelines allow open space-type provision both for the public generally and for residents of proposed housing developments – if a particular council wants both types of provision made for a particular site it can do that. 62. The applicants’ argument can be summarised under the headings of breach of sub-s. (1A), breach of sub-s. (1B)(
3. a)and breach of sub-s. (1B)(b). These need to be considered separately. Alleged breach of sub-s. (1A) 63. Insofar as the core ground suggests a failure to have regard to ministerial guidelines, that would not be correct because the guidelines are expressly referenced in the CDP. 64. The fact that the duty to have regard to the guidelines has a statutory basis in s. 28(1A) of the 2000 Act does not elevate it into anything more than a have-regard to duty. Such a duty does not set a very high bar for decision-takers: see generally G.K. v. Minister for Justice [2001] IESC 205, [2002] 2 I.R. 418, [2002] 1 I.L.R.M. 401 (Hardiman J.); Rana v. Minister for Justice [2024] IESC 46 (Unreported, Supreme Court, O’Malley J., 18 October 2024)

§93. Alleged breach of sub-s.

(1B)(a) 65. Insofar as one can ask whether there was a statement under sub-s. (1B), that is

Appendix 2 of the 2023 CDP.

1. The council argues that the applicants didn’t specifically challenge the wording of Appendix 2 and thus are barred from advancing this ground. However, pleadings don’t have to cite every micro-provision relied on as long as the point is acceptably clear – which it is here.
2. The real problem for the applicants is that the ministerial guidelines also provide policies pointing in the direction followed by the council. Page 83 of the guidelines provides (notes omitted, emphasis added): “Public Open Space Provision Of particular importance is the role that the development plan can play in the provision of quality public open space as an essential amenity. The development plan can support a structured approach to the contribution made by new development towards public open space provision in an area. 10
4. This may be achieved through requirements or standards that are to be applied in the consideration of both the quantum and quality of public open space to be provided as part of new residential developments seeking planning permission. Such requirements should be clearly set out in the development plan. There should be a distinction made between public open space required to serve an individual development proposal and that required to serve the community as a whole, which should be zoned accordingly. There should also be alternative approaches, which may include a more flexible application of standards to facilitate brownfield and infill development. Broader development plan requirements or standards for public open space may seek to address the needs of the existing community and the availability of public open space in the form of local, town or regional public parks that are an important amenity

a wider neighbourhood, town or regional scale. Planning authorities should incorporate a public open space strategy into their development plan to address open space provision as part of a wider assessment of community facilities and amenities. The development plan should provide a strategic approach to public open space provision, with local area plans and other strategies providing both application

a local spatial scale and greater detail, to ensure sufficient size and quality of provision, often with opportunities for incorporating the natural heritage and landscape features referenced in Chapter 9 of these Guidelines.” The guidelines also provide for protection of green infrastructure, hedgerows and so on: “9.2.4 Nature Conservation While protected areas cover a significant part of the country, the majority of the country lies outside of this network. There are many other sites which are of local importance for flora and fauna. Local authorities have an important role to play in preventing the loss of such sites and the species which rely upon them for their survival. Development plans should identify such sites of local ecological importance and endeavour to secure their protection. Any development on or near such sites should avoid any significant adverse impact on the features for which the site is considered to be of local importance. Features in the countryside such as hedgerows, river corridors, ponds and small stands of trees etc. provide important habitats for a variety of species. Development plans should seek to address the loss of such features in line with the National Biodiversity Plan’s commitment to no net loss of biodiversity.” Section 9.4 states: “9.4 Mandatory Objective: Amenities (Natural Features) Section 10

a general level in three situations – breach of norms, conflict of norms or absence of norms. In practical terms in the planning context that generally means when (

1. a)planning law or legally relevant policy is not complied with, (
2. b)law or legallyrelevant policy is in conflict or points in different directions, or a lower norm can be challenged as in conflict with a higher norm or (
3. c)the case

hand falls into a space where specific legal provision or legally-relevant policy is ambiguous or lacking. That’s the way the system has to work. Other branches of government can avoid these scenarios (with the court’s encouragement of course, for what it’s worth – courts are not generally looking for work) by ensuring that law and policy are as consistent and comprehensive as possible and are complied with in individual cases. That’s an ongoing process – but people shouldn’t blame the courts if in any given case, the relevant law and policy are not actually as consistent and comprehensive as possible, thereby necessitating recourse to forensic refereeing. 71. The tension between different provisions of the ministerial guidelines here is a classic instance of the phenomenon referred to in Tesco Stores Limited v. Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983 per Lord Reed

para. 19: “As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780, per Lord Hoffmann. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.” 72. This is akin to the general problem that balancing multiple factors in the process of managing public or private affairs is not something the courts are well equipped to micro-manage. As put in ClientEarth v. Shell plc [2023] EWHC 1897 (Ch), [2024] Env. L.R. 1 per Trower J.

66: “However, the evidence does not engage with the issue of how the Directors are said to have gone so wrong in their balancing and weighing of the many factors which should go into their consideration of how to deal with climate risk, amongst the many other risks to which Shell’s business will inevitably be exposed, that no reasonable director could properly have adopted the approach that they have. This is a fundamental defect in ClientEarth’s case because it ignores the fact that the management of a business of the size and complexity of that of Shell will require the Directors to take into account a range of competing considerations, the proper balancing of which is a classic management decision with which the court is ill-equipped to interfere.” 73. We then turn to whether the council has stated “how” the guidelines are implemented. 74. Appendix 2 begins: “Statement Outlining Compliance with Section 28 Ministerial Guidelines Introduction This Appendix constitutes the statement demonstrating how Fingal County Council has implemented the relevant policies and objectives of the Minister when considering their application to the County in the Development Plan. Legislative Requirements Section 28

tempt to explain how every single provision is complied with is not workable. The law does not favour unworkable interpretations: Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.; MacMenamin, Charleton, O’Malley and Baker JJ. concurring); Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43, [2024] 2 I.R. 222, [2022] 2 I.L.R.M. 313 (§106 et seq. per Murray J.; O'Donnell C.J., O'Malley, Woulfe and Hogan JJ. concurring); Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47 per Woulfe J.; Dunne, Charleton, O’Malley and Hogan JJ. concurring). An

tempt to distinguish important from unimportant provisions is also unworkable as there is just too much in the guidelines to allow for that exercise to be meaningful. 79. The standard of the reply to the question “how” is not something that automatically lends itself to a justiciable answer, especially since such a question can be answered

whatever level of generality or whatever length you may choose. Answers to “how” can be one word (e.g.: How do you get to Carnegie Hall? (in the version retold by Graham Linehan and Arthur Mathews in “A Song for Europe”)) or millions of words – such as a manual of how to put a man on the moon (a manual of how to put a woman on the moon would presumably be longer, requiring thousands of preliminary chapters on bringing about social change). Ultimately there is no limit to the explanations that could be demanded – Carl Sagan made this point in Cosmos: “If you wish to make an apple pie from scratch, you must first invent the universe” (London, Book Club Associates, 1980) p.

1. If that’s unacceptably abstract I can put it more simply – it’s easy for the applicants to strip out one line of one set of 136-page guidelines in a decontextualised manner, focus on the one issue of de-zoning and demand more specific “how”-type reasoning in respect of one particular site, but if such an obligation existed it would also apply to every other sentence in those guidelines and every sentence in the other 24 guidelines that the council had to grapple with, and would apply to all other land whatsoever in the county where a case could be made about compliance with any provision of any of the guidelines, as well as having the implication that all other city and county councils in the State would have similar obligations in respect of each line of each one of the 25 sets of ministerial 13 guidance, which they would need to comply with in respect of every plot of land in Ireland where there could be any question-mark about implementation of any of that.
2. It is not possible or workable for a council to set out

length its response to every provision of dozens of guidelines, each running to many pages (as just referred to, 25 sets of guidelines under s. 28 were considered by the council for the purposes of the sub-s. (1B) statement here), and still less to do so in relation to individual plots of land.

1. It therefore follows that the word “how” means not only a reasons-based response (such as a chain of reasoning between the specific guideline provision and the specific plan provision) but also includes a process-based or decision-making based type of explanation. To that extent the word “throughout” furnishes a sufficient albeit perhaps minimal satisfaction of the requirement to explain “how” the guidelines were implemented. Any alternative explanation quickly becomes unworkable.
2. If I am wrong about that, and if therefore the Appendix 2 statement is deficient in this regard, certiorari is inappropriate if due reasons are found elsewhere in the council’s material, which is the case here. The logic of providing open space inferentially involves compliance with the open space/ ecological provisions of the ministerial guidelines which therefore demonstrates a more reasons-based response to “how” the guidelines were implemented.
3. Standing back from that, an even bigger problem for the applicants is that the current zoning in the plan reflects the masterplan (incorporated via other provisions of the CDP – see below) which is express as to the need for open space in the Fosterstown area: “Key Objectives The following are the Key Green Infrastructure Objectives for the Fosterstown Masterplan lands: • Provide an east-west green corridor along the existing stream encompassing pedestrian and cyclist infrastructure, connecting from existing open space

Boroimhe Birches to the west of the lands with the R132 to the east of the lands. • Provide a north-south green corridor along the existing stream encompassing pedestrian and cyclist infrastructure connecting from the proposed east-west corridor to the proposed Fosterstown Link Road. • Provide a high quality landscaped space/ square opposite the proposed MetroLink station on the R132. • Ensure that the proposed Fosterstown Link Road, as well as the proposed local access streets as shown on the road hierarchy, are lined with trees planted in constructed tree pits. • Provide active open space facilities in the form of playing pitches adjacent to the school site and available for use by local residents outside of school requirements. • Provide an area of high quality landscaped open space to the north-east of the lands, adjacent to the R132, to provide high-quality green space and provide a setback for the proposed hotel from the R132. • Conserve, protect and enhance existing trees and hedgerows within the Masterplan lands to help foster biodiversity in the area. • Ensure that new or extended open space networks are designed to facilitate people with a broad range of ability.” 84. The air of unreality about the applicants’ point overall remains relevant even if I am wrong that it fails in limine. This is not actually a case of radical de-zoning of already residentially zoned lands. The actual open space zonings are lines of hedgerows/ trees along roads/ paths, a stream across the lands, or between buildings. The site overall remains suitable for housing and zoned for housing but the OS zonings merely confirm that there will need to be trees/hedgerows/ open space in between those buildings. Even if it can be called de-zoning, this is very far from the sort of central case of de-zoning envisaged by the ministerial guidelines. On the contrary, as the council forcibly and with justification submits, this is a case of promoting plan-led development. 85. As signalled above, the CDP also provides: “14.13.2 Quantity For all developments with a residential component, the overall standard for public open space provision is a minimum 2.5 hectares per 1000 population. In order to provide existing and future communities with adequate recreational and leisure opportunities, the Council will employ a flexible approach to the delivery of public open space and more intensive recreational/amenity facilities. It is the intention of the Council, however, to ensure, except under exceptional circumstances, public open space provision exceeds 12% of a development site area. The development site area cannot include lands zoned RU, GB, OS or HA. Objective DMSO51 – Minimum Public Open Space Provision Require a minimum public open space provision of 2.5 hectares per 1000 population. For the purposes of this calculation, public open space requirements are to be based on 14 residential units with an agreed occupancy rate of 3.5 persons in the case of dwellings with three or more bedrooms and 1.5 persons in the case of dwellings with two or fewer bedrooms. Consideration may be given by the Council to the inclusion of civic spaces within overall open space quantum calculations, but only on a case-by-case basis and only in instances where the space proposed is of a size and layout suitable to cater for civic events, is of an exceptionally high standard of finish, including the planting of large street trees and associated landscaping and does not fulfil ancillary functions associated with commercial or other land uses.” 86. Insofar as the applicants complained in submissions that open space within a development site could be doubled merely by specifically zoning green areas as open space (because there would then have to be additional recreational space for development users in the context of a given consent), and even allowing for the possibility that reasonable people could disagree about whether that is a good idea, it has not been established that that is unlawful. For what it is worth, the compact settlement guidelines 2024 provide that a net site area may be 65-80% of the gross site area: “In applying this methodology in the preparation of a Core Strategy under Section 10 of the Act, the planning authority will need to account for net and gross areas when calculating land requirements. It will be necessary to make an informed estimate of net developable area taking account of factors such as the need for major roads and parks, schools, commercial uses and the presence of flood zones and other environmental sensitives etc., and to determine an appropriate density range for each area. The general rule of thumb is that the net site area would be between 65 to 80 percent (approx.) of the gross area but this will depend on the area of land involved and local circumstances. Appendix B Measuring Residential Density sets out more detail in relation to net and gross site areas.” 87. The guidelines also envisage that public open space provision would be 10-15% of the net site area, not the gross area – so a deduction of 24% of the gross area (the 12% zoned OS and a hypothetical 12% minimum provision for residents under the plan) would not be out of line: “Policy and Objective 5.1 - Public Open Space It is a policy and objective of these Guidelines that statutory development plans include an objective(

1. s)relating to the provision of public open space in new residential developments (and in mixed-use developments that include a residential element). The requirement in the development plan shall be for public open space provision of not less than a minimum of 10% of net site area and not more than a minimum of 15% of net site area save in exceptional circumstances. Different minimum requirements (within the 10-15% range) may be set for different areas. The minimum requirement should be justified taking into account existing public open space provision in the area and broader nature conservation and environmental considerations. In the case of strategic and sustainable development sites, the minimum public open space requirement will be determined on a plan-led basis, having regard to the overall approach to public park provision within the area. In the case of sites that contain significant heritage, landscape or recreational features and sites that have specific nature conservation requirements, a higher proportion of public open space may need to be retained. The 10-15% range shall not therefore apply to new development in such areas. In some circumstances a planning authority might decide to set aside (in part or whole) the public open space requirement arising under the development plan. This can occur in cases where the planning authority considers it unfeasible, due to site constraints or other factors, to locate all of the open space on site. In other cases, the planning authority might consider that the needs of the population would be better served by the provision of a new park in the area or the upgrade or enhancement of an existing public open space or amenity. It is recommended that a provision to this effect is included within the development plan to allow for flexibility. In such circumstances, the planning authority may seek a financial contribution within the terms of Section 48 of the Planning and Development Act 2000 (as amended) in lieu of provision within an application site.” 88. So there is nothing obviously unlawful, or inherently contrary to existing policy, for what that is worth, about a deduction under both headings from developable lands along the lines that could arise here, even accepting that both parties’ positions on this are well within the zone of the reasonable. 89. Ultimately in terms of the relief sought, no breach of the statutory requirement to show “how” the ministerial guidelines has been demonstrated. Alleged breach of sub-s. (1B)(
2. b)15 90. The basic problem for the applicants is that the council did not formulate the view that the guidelines were not complied with. Therefore the obligation to formulate reasons as to why it was not possible did not arise. 91. Furthermore the council’s decision is not objectively in contravention of guidelines which contain text which points in potentially different directions and thus which has to be reconciled and/or applied in the exercise of evaluative judgement. More overarchingly, this is not a case of overall de-zoning of the type to which the guidelines are directed – rather it is a case of providing for open space within a larger site that remains zoned for residential development. 92. If I am wrong about that, the reasons for the change in zoning are acceptably clear in any event namely the provision of additional open space, for reasons referred to above. II – Challenge to map-based objective (core grounds 4 to 6) Core ground 4 – map-based objective in alleged breach of guidelines 93. Core ground 4 is: “4. In making the Fingal Development Plan 2023-2029, the decision to adopt map-based objective no. 38, as inserted by material amendment PA SH 8.5, is inconsistent with ministerial guidelines, and as a result the Respondent was in breach of its obligations pursuant to section 28(1A) of the Planning and Development Act 2000 to have regard to ministerial guidelines, and to consider the policies and objectives of such guidelines, and was also in breach of its obligations pursuant to section 28(1B) insofar as it failed to provide any or any adequate reasons as to why the policies and objectives of such guidelines could not be complied with and is therefore unlawful, ultra vires, invalid and of no legal effect.” 94. The parties’ positions as recorded in the statement of case are summarised as follows: “Core Ground 4 Density – s.28 Guidelines Applicants’ Position In a similar vein to Core Ground 1 above, where subsections 28(1A) and (1B) require that, where a local authority has formed the opinion that it cannot comply with relevant policies and objectives as contained in applicable guidance it must give reasons in the statement to be appended to the CDP the reasons for reaching this conclusion. Map-based objective no. 38, as inserted by material alteration PA SH 8.5, as adopted by the Respondent, had the effect of restricting the density of residential units on the Applicants’ lands to a range of 110 to 115. In adopting the material alteration, the Respondent was obliged to have regard to the ‘Guidelines for Planning Authorities on Sustainable Residential Development in Urban Areas (Cities, Towns & Villages)

paras. 50-51 of the statement of grounds as referring to accessible (sub)urban locations, of which this is clearly one. But that in itself doesn’t warrant any specific density and nor is any specific density pleaded other than by way of an unspecific contrast between undefined “increased” density (para. 53) and the alleged “restrict[ed]” density under the objective (para. 46 of the statement of grounds). The premise is incorrect – if anything the objective is slightly more favourable to the applicants than the position that would otherwise apply under the masterplan. But more generally, 110-115 units per hectare is itself an increased density over many urban environments (and in particular is over and above the other two masterplan areas – see below).

1. If it will assist the applicants, I will include a recital in the order that the map-based objective does not constitute a reduction of the density that would otherwise apply by virtue of the incorporation of masterplans into the CDP (a suggestion I made in the draft judgment, which stimulated no adverse reactions).
2. The Sustainable Residential Development and Compact Settlements Guidelines for Planning Authorities do envisage specific ranges potentially in excess of what this plan provides (i.e., up to 150 dph). The development site

issue in this case appears to me on the face of things to be 17 suburban land in proximity to transport links. No doubt the commission will decide that in due course but if my impression is correct, the following text would apply (notes omitted, emphasis added): “City - Suburban/Urban Extension Suburban areas are the lower density car-orientated residential suburbs constructed

the edge of cities in the latter half of the 20th and early 21st century, while urban extension refers to the greenfield lands

the edge of the existing built up footprint that are zoned for residential or mixed-use (including residential) development. It is a policy and objective of these Guidelines that residential densities in the range 40 dph to 80 dph (net) shall generally be applied

suburban and urban extension locations in Dublin and Cork, and that densities of up to 150 dph (net) shall be open for consideration

‘accessible’ suburban/urban extension locations (as defined in Table 3.8).”

1. By definition the council can’t be expected (nor did the applicants expect them) to anticipate guidelines published after the making of the CDP and it wasn’t argued that they were obliged to vary their plan automatically merely because subsequent guidelines are made. But the commission will no doubt consider those guidelines to the extent that they think it appropriate in the context of any specific planning application. Core ground 5 – failure to consider proper planning and sustainable development
2. Core ground 5 is: “
3. The decision of the Respondent to adopt map-based objective no. 38, as inserted by material amendment PA SH 8.5, in the Fingal Development Plan 2023-2029 is invalid, ultra vires, unlawful and of no legal effect because the Respondent failed to consider, whether properly or

all, the proper planning and sustainable development of the Fosterstown area, in breach of section 12

the site. The Council’s reasoning and rationale for its decision should be considered by reference to the complete context to same and it is not appropriate to seek to isolate a debate on a Motion without any reference to the consideration of the Masterplan and the policy approach relevant to same in the 2017 CDP and the 2023 CDP. The Applicants purport to impermissibly expand the scope of the pleaded case and seek to identify a number representations made by Cllr Mulligan during the course of the debate. However they have not particularised which, if any, of these representations are not related to the proper planning and sustainable development of the area, nor have the Applicants particularised how such representations, which relate to the appropriate densities for appropriate locations in an area or ensuring consistency with locally adopted masterplans, constitute extraneous or irrelevant considerations. They do not and there is a real lack of substance to this Core Ground. 18 The Applicants have failed to identify which, if any, of the comments made in the course of the debate constitute either personalised or non-planning matters which are not valid planning considerations. Nor have the Applicants engaged with the question of whether any such comments were marginal or central. No

tempt has been made to properly advance this complaint, most probably because when one looks

the facts objectively, there is no evidential basis to support same.” 104. Section 12

§7; Mulloy v.

An Bord Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March 2024)

§178(citing O’Donnell v.

An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1 November 2023)); Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024)

§64

); thus for example “unhelpful” statements should not be read as inconsistent with statutory factors if the decision can be read as valid – E.M. v. Minister for Justice and Equality [2024] IESC 3 (Unreported, Supreme Court, 21 February 2024) per Dunne J. (Charleton, Woulfe, Murray and Donnelly JJ. concurring); Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025); Moran v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025) per Farrell J.

13, and this applies even if the wording is sub-optimal: Duffy v. An Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December 2025)

32; and (ii) if there is any departure from legal parameters one has to ask how central such a comment is. 107. One then asks what are the alleged improper considerations here. The applicants summarise their claim

para. 60 of submissions: “60. As set out in the Affidavits and exhibits grounding the application for judicia[l] review, in the debate on material alteration PA SH 8.5, which proposed to insert map-based objective no. 38 in the CDP, Councillor Dean Mulligan, who proposed Motion No. 209 to reject the Chief Executive’s recommendation not to adopt material alteration PA SH 8.5, made the following representations to the meeting of the Council: (

1. a)he is trying to solidify the density on the site, given the importance of having a legal precedent in a document that actually has and is considered as part of the legal framework of planning documents; (
2. b)masterplans have been materially contravened successfully on numerous occasions; (
3. c)it is not fair when the Council gives generous densities, and developers come in with net densities of 170, 180, 190 and say ‘like it or lump it because it is getting agreed’; (
4. d)appropriate densities should exist in appropriate locations and that those locations should be solidified in the development plan; (
5. e)we do not know what the new process after the SHD will look like, and not enough large scale developments have gone through the process to be able to say how fruitful it will be in terms of solidifying masterplans. (
6. f)the Apartment Guidelines ruined good planning and created a situation where developers are hoarding land because they want to make more money on it and build over and above. (
7. g)this was why ‘we have so much bloody land zoned and we can’t build’ because after 2017 and 2018, developers realised they have [planning] permission for 5 years and so could wait the 5 years because they could get double what they want then.” 108. The problem for the applicants is that Cllr Mulligan was clearly talking about developers generally. The manner and timing by reference to which developers generally make applications is a valid consideration because any given plan provision has to fit into an actual practical system. To put it another way, his essential logic seems to me to be something along the following lines: given that developers generally act in manner X, we need to make provision Y in order to achieve planning outcome Z. 19 109. What is obvious from that is that in substance Cllr Mulligan was – legitimately and lawfully – directing his

tention and remarks to the planning outcome. The comment about developers was in the context of what needed to be done in order to achieve what he considered to be that proper planning outcome. This is all totally within the legitimate scope of evaluative judgement in the planmaking process by members of a political assembly. Reasonable people can agree or disagree with his analysis but it is within the realm of the legally valid. 110. To interpret this as some sort of impermissible personalised criticism of these applicants is to commit the fallacy of interpreting a decision as invalid when a valid reading is available. These comments could apply and can be read as applying to development on this land no matter who owned it – they are not expressed as, nor are they in substance, personal to the current owners. The mere fact that these applicants are in fact the present owners of the land concerned does not have the implication that he was talking about them in some erroneously personal way or indeed

all – his remarks are more properly to be construed as referable to whoever was going to develop the land from time to time during the currency of the development plan. As with any text or document, if a valid reading is available, as it is here, that is the reading to be preferred. There is thus no analogy with daa plc v. Fingal County Council [2024] IEHC 589 (Unreported, High Court, 17 October 2024), where specific actions and stances of named landowners and occupiers were being heavily referenced. 111. The overall problem for the applicants is that the density in the objective is nearly identical to the density in the masterplan (

p. 1): “Density Net: 105 -115 units/ ha” 112. The material amendment incorporated in the adopted plan was thus slightly more favourable to the applicants as developers than the masterplan, since it pitched the density

110-115 units/ha. The applicants can’t plausibly complain about an aspect that is in their favour.

1. Thus the disagreement between Cllr Mulligan and the officials was not as to the principle but as to the necessity for a plan provision given that it was already provided for.
2. The problem for the applicants’ argument is that the plan itself specifically provides for the masterplans to be implemented.

p. 62: “Operational Masterplans The Council will continue to implement the Masterplans currently in place

the time of adoption of the Development Plan. The operational Masterplans for Fingal County Council are listed in Table 2.17 below. Table 2.17: Operational Masterplans • Dublin Airport Central Masterplan (MP 11.A) • Swords Masterplans, June 2019 - includes Barrysparks (MP 8.B), Crowscastle (MP 8.D), Fosterstown (MP 8.C) and Estuary West (MP 8.A) • Castlelands Masterplan, March 2021 (MP 4.A)” 115.

p. 63: “Policy CSP8 – Implementation of Masterplans Implement Masterplans prepared in accordance with the Development Plan.” 116.

p. 80: “Objective CSO29 – LAPs, Masterplans and Frameworks Plans for Dublin City and Suburbs As set out in Tables 2.15, 2.16, 2.17, 2.18 and 2.19 • Implement existing Local Area Plans and Masterplans within Dublin City and Suburbs • Prepare and implement Local Area Plans for identified areas • Prepare and implement Masterplans for identified areas • Prepare and implement Framework Plans for identified areas within the Dublin City and Suburbs area.” 117.

p. 83: “Objective CSO44 – LAPs, Masterplans and Framework Plan for Swords As set out in Tables 2.15, 2.16, 2.17, 2.18 and 2.19: • Implement existing Local Area Plans and Masterplans within Swords. • Prepare and implement Local Area Plans for identified areas. • Prepare and implement Masterplans for identified areas. • Prepare and implement Frameworks for identified areas within Swords.”

1. The applicants implausibly try to minimise these references as implementation without incorporation. But you can’t implement something that doesn’t apply – the above provisions involve applying the masterplans by necessary implication.
2. In short, the amendment is merely making express on the map what is already provided for in the plan via the policy of implementing the masterplan. Certiorari makes no difference (and thus would be inappropriate) even if counterfactually the premise of this ground had been made out. Core ground 6 – discrimination and irrationality
3. Core ground 6 is: 20 “
4. The decision of the Respondent to adopt map-based objective no. 38, as inserted by material amendment PA SH 8.5, in the Fingal Development Plan 2023-2029 in relation to the Applicants’ lands unlawfully discriminated against the private property interests of the Applicants, was irrational and unreasonable in that it applied different reasoning to factually similar situations and failed to take into account relevant considerations.”
5. The parties’ positions as recorded in the statement of case are summarised as follows: “Core Ground 6 Alleged application of different reasoning to factually similar situations Applicants’ Position The Chief Executive’s Report on the submissions and observations made on the Draft CDP,

page 578, referenced a submission which had been received in connection with lands

Auburn House, Little Auburn and Streamstown off the R107 Malahide Road. It was considered in that report that the requested insertion of a new Local Objective in relation to that site would not be appropriate in circumstances where the site was subject to a live planning application. As

the date of the Impugned Decision, both the Applicants’ lands were similarly the subject of ‘live’ planning applications. The Applicants were entitled expect that the Respondent would act consistently, as any rational decision-maker should and,

the level of principle, would not apply different considerations to situations involving practically identical planning considerations. In failing to act consistently in this regard, the Respondent’s decision was irrational, unreasonable and failed to take into account a relevant consideration in that the same issue had been dealt with in a diametrically opposed fashion in very similar factual and planning circumstances arising on the same development plan-making process. Respondent’s Position The Applicants

tempt to impugn the density objective imposed on their Lands by reference to how other lands were treated during the 2023 CDP process is misconceived. Each decision has to be considered by reference to the particular reasoning informing same – the Applicants have failed to set out the full reasoning to the Councils’ decision in respect of their land, and equally, the other lands which they purport to rely on. In this respect, the Applicants seek to draw an equivalence between the Council’s decisions on this Lands and those

Auburn House. However, beyond referring to an extract from the Chief Executive’s Report, the Applicants make desultory efforts in purporting to present that the situation in respect of the Auburn House lands was the same as that presenting in respect of the Applicants’ Lands – it was not. For example, the Applicants do not refer to the fact that the density range objective imposed over their Lands flowed from the strategic approach to the Fosterstown area – with the 2023 CDP seeking to implement the Fosterstown Masterplan. No

tempt has been made to show how similar considerations presented for Auburn House. More fundamentally, the Council’s policy decisions in respect of one area/land, do not dictate or govern its decision on others. As has been set out above, the Elected Members acted in accordance with the requirements of the PDA in adopting this objective and provided a clear planning rationale for so-doing, which has not been impugned, or even addressed, by the Applicants. The flaw with this Core Ground is perhaps best illustrated by the Applicants complete failure to engage with the planning rationale informing the Council’s approach. The Applicants cannot credibly seek to draw a comparison in decisions without properly understanding the basis for the decisions – which would necessarily require them to engage with the strategic/planning approach informing the Council’s decision for their lands, which they have simply failed to do.”

1. I do appreciate that one could make a theoretical argument for inclusion of a similar express provision as to density for other masterplan areas in the interests of complete academic consistency. However, there are two reasons why that doesn’t translate into relief. The first reason is as set out above – the map-based objective essentially repeats what is in the masterplan and what is thus incorporated in the CDP, in terms that are slightly more favourable to the applicants. So none of this properly arises.
2. To add to that, the densities in this masterplan are well in excess of those in either of the other two Swords masterplans. The applicants acknowledge that in their statement of grounds: “
3. Each of the three areas of Fosterstown, Barrysparks & Crowscastle and the Estuary West Masterplans provide density figures and general guidance. The Estuary West Masterplan states: ‘Lower density houses have been incorporated along Jugback Lane, while higher density apartments are located through the centre and south of the lands.’ The 21 Estuary West Masterplan also includes a map of density areas, a figure of 70-75 u/ha is provided.
4. The Barrysparks & Crowscastle Masterplan does not provide a similar diagram of density areas but instead provides a map of heights and residential typographies. A key objective in relation to density provides as follows: ‘Provide residential accommodation

a net density of 95-105 units per hectare, with an appropriate mix of houses and apartments to meet the needs of future residents of the area and to diversify Swords’ existing housing stock.’” 124. But even if it provided for something materially less favourable (which it doesn’t), the principle of non-discrimination does not preclude a degree of experimentation. It would be an unduly doctrinaire and rigid application of the concept of equality to prohibit initial

tempts to provide for specific situations merely because other situations could be represented as comparable. What O’Donnell C.J. said in O’Meara v. Minister for Social Protection [2024] IESC 1, [2024] 1 I.L.R.M. 437

22 has a resonance here even allowing for a somewhat different legal context: “there is some benefit in the Legislature being allowed to experiment and to proceed incrementally”.

1. So this point does not in fact arise but if it did arise, no unlawful discrimination or a fortiori irrationality would have been made out.
2. For similar reasons the complaint regarding inconsistency with the council’s response to another development site the subject of a live planning application is unfounded: “
3. Further, the Chief Executive’s Report on Draft Plan Consultation referenced,

page 578, a submission which was received in connection with lands

Auburn House, Little Auburn and Streamstown off the R107 Malahide Road requesting ‘...inclusion of a special objective in the new County Plan that Auburn House and

tendant grounds are only suited to extremely low density and limited residential development and any development to be subject to proper protection of Auburn House and

tendant Grounds.’ 68. The Chief Executive responded as follows: ‘The lands

Auburn House have been zoned for residential development for many years. National policy on building heights and densities set out direction on the form of the redevelopment of the lands

this location. Auburn House and lands are the subject of a live SHD Planning Application, with a decision due in August 2022 (TA06F.313360 refers). The description of development is: “Preservation of Auburn House (a Protected Structure) and stables as 1 no. residential dwelling, conversion of stables to provide storage space for Auburn House, construction of 368 no. residential units (87 no. houses, 281 no. apartments), creche and associated site works.” It would not be appropriate to insert a new Local Objective in relation to Auburn House, while this area is subject to a live planning application.’”

1. That was a case where the amendment would have been a significant change to the density applicable to the site. In this case, the density associated with the development site would not have been significantly different without the amendment.
2. The applicants claim that the amendment “elevates a non-statutory master plan” into CDP status – but that downplays the existing incorporation of the masterplans by way of wording elsewhere.
3. Thus an argument based on different treatment of identical situations (relying on O’Neill J. in Grealish v. An Bord Pleanála [2006] IEHC 310, [2007] 2 I.R. 536, [2006] 1 I.L.R.M. 140 and Porter v. An Bord Pleanála [2017] IEHC 783 (Unreported, High Court, O’Regan J., 21 December 2017), in particular

§25) doesn’t get off the grounds – these are not identical situations.

1. As of the adoption of the CDP there were two live planning applications as pleaded: “
2. Of particular relevance in this context is the existence of a pending application for permission for SHD made by the Second Applicant (Board ref. ABP-313331-22). The Board’s decision on that application is awaited.
3. Similarly, as noted in Part 3 below, on 3 February 2021 An Bord Pleanála (the ‘Board’) granted permission to the MKN Property Group for strategic housing development on the part of the subject lands within the ownership of the First Applicant (ref. ABP-30836620). That application was made with the consent of the First Applicant as landowner. That permission is under legal challenge, and, in the event that challenge is successful, the Board may be required to reconsider the application for permission for SHD anew. In those circumstances, the de-zoning of the subject lands and the insertion of a density cap is an impermissible

tempt to interfere with any future consideration of the application by the Board.”

1. ABP-313331-22 (the Murphy lands to the south) was refused.
2. ABP-308366-20 (the MKN lands to the north) was granted (278 units) but quashed by order of 27 July 2024 perfected on 9 August 2024 (2021 0245 JR O’Reilly v. An Bord Pleanála – MKN submitted opposition papers but the matter was not in the end contested for reasons that I do not 22 have a record of to hand) and remitted. The remitted application is numbered PA06F 320806-24 and remains pending (https://www.pleanala.ie/en-ie/case/320806).
3. To be clear, the fact that I am not persuaded that the plan should be quashed obviously does not inhibit the commission from considering whether to permit additional densities in the light of the compact settlement guidelines, climate legislation or otherwise, in the context of either the existing strategic housing development (SHD) application to the north of the lands or any future hypothetical large-scale residential development (LRD) application to the south. More generally, it’s not obviously apparent how compliance with the ambitious climate targets in domestic and EU legislation can be achieved without a greater concentration of any new development in terms of both density and building height, although consideration of that is of course for planning decision-takers in the first instance subject to contrary submissions from process participants and to judicial review, which as the present case illustrates is open to all stakeholders, including developers. The rule of law is meant to ensure appropriate recourse for everyone, not just for particular groups that may be societally favoured from time to time. I am open to being corrected as usual, but it seems to me that the evaluative judgement of the commission is a more promising route for the applicants to make their points than quashing the plan or any part of it on the basis of the complaints made here, even if counterfactually grounds for that had been established. Summary
4. In outline summary, without taking from the more specific terms of this judgment: (i) it is settled law that the elected members are entitled to change the zoning of land and that the court should be slow to interfere with their democratic decision in that regard; (ii) applying such law to the facts here, the applicants have not overcome the onus to show any illegality in that decision; (iii) it is settled law that an applicant’s point must be workable in order to warrant the grant of relief; (iv) applying such law to the facts here, even if counterfactually this was a case where land was being de-zoned in the sense of the relevant guidelines, any alleged duty to set out

greater length than was done here how the council implemented hundreds of pages of text in more than two dozen ministerial guidelines would not be workable – the fact that the applicants single out one single favourable decontextualised provision and demand more narrative analysis of that alone does not provide a valid legal basis to restrict the unfeasibly extensive obligation that would be thereby unleashed; (

1. v)it is settled law that a decision should be read as valid if a valid reading is available; and (
2. vi)applying such law to the facts here, the remarks of the elected member who proposed the impugned map-based objective can be read as valid, but in any event the objective adopted was more favourable to the applicants than the density that would otherwise apply via incorporation of the masterplans even in the absence of the objective, so certiorari of that objective would be inappropriate in any event. Order 135. For the foregoing reasons, it is ordered that: (
3. i)the proceedings be dismissed; (
4. ii)there be a recital in the order that the development plan incorporates densities as set out in the masterplans which it states are to be implemented, and thus the impugned map-based objective is not less favourable to the applicants than the density that would otherwise apply in the absence of that objective; (iii) unless any party applies otherwise by the time and in the manner set out below, the foregoing order be perfected forthwith thereafter on the basis of no order as to costs (including no order as to any reserved or adjourned costs or costs not otherwise dealt with); (
5. iv)the foregoing proposed order be subject to contrary written legal submission or any consequential application supported by a written legal submission, such submission to be delivered within 7 days, with replies by other parties within a further 7 days; (
6. v)for the avoidance of doubt, any unsuccessful application to vary any provisional order as to costs proposed in this judgment may be addressed pursuant to O. 103 r. 40

09:30 on Monday 18 May 2026 to confirm the foregoing.