High Court halts dezoning of developer’s housing land in Offaly

Consdorf Investments ICAV granted stay on Offaly County Council’s recent decision

The High Court has halted the implementation of part of the new County Offaly Development Plan in a dispute with a developer over the dezoning of residential land in Tullamore, including a site earmarked for 349 homes.

Investment vehicle Consdorf Investments ICAV has been granted a stay on Offaly County Council’s recent decision to approve its new county plan insofar as it affects Consdorf’s 25-hectare site in the town.

In the previous plan, the Consdorf site was zoned for housing but the council, in order to comply with national and regional guidelines, said it dezoned the Consdorf land so that it could reduce its overall residential zoning.

On Friday, as well as granting a stay on the dezoning of the Consdorf land in the new plan, Mr Justice Charles Meenan granted the developer leave to bring judicial review proceedings seeking to quash the dezoning itself.

Consdorf has also sought declarations including that the council erred in law in failing to consider reasonable alternatives to the decision it made and in failing to have any or adequate regard to the Government’s New Housing Plan for Ireland.

Consdorf director, Jim Bennett, said in an affidavit that the plan change will have a very significant impact on its business. This was in circumstances where Consdorf was awaiting a decision next week from An Bord Pleanála on its application, under strategic housing legislation, for permission to go ahead with its plans to build on the land on the basis of its residential zoning.

Neil Steen SC, for Consdorf, said his client had been seeking for a number of years to develop the land and had already spent €3 million on site acquisition and preparations since 2016. While in other circumstances it is open to a council or An Bord Pleanála to materially contravene a zoning objective, this was not possible under strategic housing requirements, he said.

The developer had been fully engaged in properly making this application but it was now being frustrated by the development plan change, he said. While there was no guarantee the board would grant permission, his client did not want this possibility completely foreclosed by the zoning change.

Dermot Flanagan SC, for the council, said his client had to comply with national and regional ministerial strategy where the amount of zoned residential land in Tullamore had to be reduced to 43 acres. There is a presumption in planning legislation that land can be downzoned, he said.

He said there had been alignment between councillors, officials, the Office of the Planning regulator and the national/regional guidelines when the dezoning decision was taken.

Mr Justice Meenan said he was satisfied there were substantial grounds to grant leave to bring the action.

He was also satisfied that Consdorf would suffer well-defined prejudice should it not be granted a stay. However, the stay only applies to the Consdorf lands in the development plan, he said.

He also agreed to a request from An Bord Pleanála, which said it had only been notified of the intended action shortly before the hearing, to be joined as a notice party in the case.