ADDITIONAL legal advice has been sought by Clare councillors ahead of a crucial vote in March on whether or not to adapt the County Development Plan.
Reference was made to the 2002 case of McEvoy versus Meath County Council in a proposal put before Clare County Council by Cllr Clare Colleran Molloy (FF), Cllr Michael Begley (IND) and Cllr Mary Howard (FG).
In the 2002 case, the applicants sought an order declaring that in adopting a development plan for the county of Meath, the Respondent failed to have “due regard” to the strategic planning guidelines for the greater Dublin area and that in consequence the plan was void and of no effect. The High Court ordered the successful Respondent to pay part of Applicant’s costs in a case involving the planning dispute, as there was a public interest element and the Respondent had contested facts which should have been agreed.
Clarity was requested by the Clare trio on whether the case provided “sound legal basis to permit” councillors to deviate from guidelines for bona fide reasons consistent with proper planning and sustainable development.
No response was issued by the County Solicitor, instead Director of Service, Liam Conneally compiled a written reply “in consultation” with the County Solicitor. “The finding of McEvoy v. Meath County Council has been superseded by statutory developments since 2002, to the extent that the duty ‘to have regard to’ has effectively been replaced by more restrictive measures”. Guidelines inserted in the Planning and Development (Amendment) Act 2018 (“the 2018 Act”) “require a planning authority to comply with them, rather than to have regard to them”.
“We need to be equipped with the correct legal understanding,” Cllr Colleran Molloy stated. “We’re learning that McEvoy does not apply to planning guidelines we are being forced to comply with and not have regard to,” the qualified barrister noted.
Councillors were “certainly entitled to a proper legal reply,” Cllr Begley argued. “If I was a business person and I made projections for my business for the next ten years, a year or two later if I found out that basis for my facts had changed, surely I would go back and revise the basis for setting out the guidelines,” the Clonlara representative commented.
County Development Plans continue to be “so contentious,” Cllr Mary Howard (FG) believed. “You don’t know if you’re doing it right or wrong, you are goosed if you do and goosed if you don’t”. Similar issues are being raised all over the country, the Ennis representative flagged.
Cllr PJ Kelly (FF) observed that the McEvoy case “says you can disregard guidelines if you give clear proper reasons for doing so”.
Although councillors remain frustrated to a huge degree, “we haven’t moved one step,” Cllr Pat McMahon (FF) said of the lengthy debates surrounding the County Development Plan. “Over 50 settlements in Clare haven’t wastewater infrastructure, now and again we get crumbs from the table to get new infrastructure but I’m beginning to think they have no intention of doing the fifty”.
Clare’s desired achievements will not be reached “unless there is a mind shift at national level,” Chief Executive of the local authority, Pat Dowling stated. “We can win all the legal battles but there needs to be a change in that”. Colleran Molloy responded, “Nobody wants combative arguments unless we can have a positive outcome”.
