The High Court has found no logical basis for including a Bishopstown dwelling house and its curtilage in land zoned as public open space, but has yet to decide what order should follow.
In a judgment delivered on 21 October 2011, Ms Justice Dunne considered the issue after an earlier judgment in December 2010 refused Ken Mahon’s requested relief in judicial review proceedings concerning the zoning of lands in Bishopstown, Cork. The court had then raised a separate concern about whether the zoning appropriately included the house and its curtilage, and heard further submissions from Mahon and Cork City Council.
Mah on’s counsel argued that applying the public open space designation to the house and garden was disproportionate to the planning objective. The Council submitted that the development plan was lawful, that zoning regulated future use rather than acquiring land or giving the public rights over it, and that the house had not been occupied as a dwelling for a considerable period. The Council also argued the applicant had not sought a separate relief concerning the house at the hearing; the judgment records that a privacy-related relief in the statement of grounds was not pursued.
The judge applied the limited judicial review test for irrationality described in O’Keeffe v An Bord Pleanála: an applicant must establish that the authority had no relevant material to support its decision. She noted that the public had used the wider lands as an amenity for more than 40 years, but there had never been any suggestion of public access to the house and its curtilage.
Justice Dunne concluded that the house and curtilage did not fall within the kinds of open space contemplated by the development plan, and that their inclusion could not meet the Council’s stated objectives. She said she could see no relevant material supporting that part of the zoning and described it as making no sense.
The judgment did not set aside the zoning or specify a remedy. The court said it would hear the parties further on the appropriate order. The earlier refusal of relief in the wider proceedings remains part of the procedural history; this judgment addresses the discrete issue of the house and curtilage.