The High Court has rejected Ken Mahon’s challenge to the refusal of planning permission for 44 apartments and to the zoning of his Bishopstown land as public open space, while reserving a question about the zoning of a dwelling and its curtilage.
In a judgment delivered on 21 December 2010, Ms Justice Dunne said Mahon was not entitled to the relief sought in two judicial review proceedings. The cases concerned land at 1 Parkgate Villas, Bishopstown Road, Cork, owned by Mahon and Jason Healy. The court heard the application for leave and the substantive judicial review together.
An Bord Pleanála had refused Mahon’s appeal against Cork City Council’s rejection of his apartment proposal. The Board said the site had been used and maintained as public recreation and amenity space since the surrounding estate was built, and that the development would remove most of the landscaped area, harm nearby amenities and materially contravene Policy NHR 11 of the development plan.
Mahon argued that the policy could not apply to privately owned land and that the zoning was unlawful, uncertain and an unjust interference with property rights. The Council and the Board submitted that the land’s planning history and long use supported its protection as open space, and that zoning regulated future development without transferring ownership or giving the public a right of access.
Justice Dunne found that the development plan was ambiguous: its map showed residential, community and local services zoning, while Variation No. 5 to Policy NHR 11 appeared to deem the land public open space. She described the “deemed zoning” concept as strange. However, she concluded that Mahon’s arguments amounted to a challenge to the validity of the amended policy, which he had not directly brought. On that basis, he could not succeed against the Board’s refusal.
The judge said zoning the land as public open space did not acquire it for the Council, deprive Mahon of ownership or entitle him to compensation. She also observed that the Council had used zoning to address an open-space condition in the original planning permission that it had failed to enforce, calling that course unsatisfactory.
The court did not finally resolve whether the zoning could properly include the dwelling and its curtilage. Justice Dunne said she would hear the parties further on whether that aspect was appropriate or proportionate. The judgment therefore records rejection of the relief sought, with that specific issue left for further argument.