Mount Salus
The Consistency of Development Plan Provisions with National Policy
I have drawn attention on many occasions to the emphasis which the Planning and Development Act 2024 (“PDA 2024”) regime places upon an “integrated hierarchy of plan-making” (Planning and Development Act 2024, Implementation Plan (March 2025), p5). As things stand (more of which later), it will be for the Office of the Planning Regulator (“OPR”) to enforce that hierarchy.
It is in this context that the Court of Appeal has recently considered the basis upon which and the standard by which the OPR should assess the consistency of development plans with national planning policy. The second highest court in the land has made an important contribution to the law subject to which the ‘new planning hierarchy’ will be enforced.
Mount Salus Residents’ Association v An Bord Pleanála v The Minister v OPR [2026] IECA 28 was an appeal against the judgment of Holland J ([2025] IEHC 14). The case concerned the validity of a Direction made by the Minister under s31 PDA 2000 (for which see now s65 PDA 2024).
This post will;
outline the facts of the case
set out the High Court decision, the circumstances of the Appeal and describe the underlying planning issue
outline the Court of Appeal judgment under two clear headings
raise five specific concluding issues
The entirety of the Court of Appeal judgment section and the Conclusion are only available to paid subscribers.
Paragraph numbers below (§) refer to the Court of Appeal judgment given by Allen J, unless stated to be from that of the High Court (“HC”).
The Facts
As with most legal disputes, Mount Salus arose in ordinary circumstances.
The Developer was refused permission for a two storey house on Torca Road, just east of Mount Salus Road, Sorrento, Dalkey (“the Proposed Development”), “among the leafiest suburbs of South County Dublin” (§9), in the functional area of Dun Laoghaire-Rathdown County Council (“DLRCC”).
The Developer appealed to what is now An Coimisiún Pleanála which granted permission (308876, 7 September 2022, the date at §3 of the High Court judgment is incorrect). The Applicant/Appellant (”Mount Salus”) represents nearby residents and sought Judicial Review of the Commission’s grant of permission. The challenge was conceded by the Commission on the basis that it had misinterpreted certain provisions of the Development Plan. It was agreed that the matter would be remitted to the Board (HC §3).
In addition to raising points directly in respect of the the Commission’s decision, however, Mount Salus also challenged a Recommendation of the OPR and a Direction of the Minister to excise the “0/0” Zoning Objective from the Dun Laoghaire-Rathdown County Development Plan 2022 to 2028 (“the Development Plan”) which sought to protect the architectural heritage of Dalkey (“the Zoning Objective”) (see §11 and HC §2 and 157).
The judgments in both the High Court and the Court of Appeal concern only the validity of the Recommendation and Direction. The practical issue before the Court related to the validity of the OPR’s Recommendation to the Minister to make the Direction as it was conceded by the OPR and the Minister that if the Recommendation was invalid then the Direction was also invalid.
The parties agreed that, despite the Board’s concession, it was necessary for the Court to adjudicate upon the validity of the Direction in order that the basis of the Commission’s reconsideration of the planning application would be clear - whether the application would be determined subject to the Zoning Objective or not (the latter would be to the advantage of the Developer).
The wider significance of the case is the authoritative commentary it provides regarding the statutory powers of the OPR and the Minister, “in combination and in effect, to direct the amendment of a development plan” (HC §1), of central importance to the planning “balance of power” (§124).
The High Court, the Appeal and the Underlying Planning Issue
In the High Court
In the High Court, Holland J held that the OPR’s Recommendation to the Minister to make the Direction was invalid. In that circumstance, it was agreed by the parties that the Minister’s Directions also fell (§5, 30).
Had matters been left there, the remitted application would have been reconsidered by the Board on the basis of the Development Plan with the Zoning Objective included.
The Appeal
In quashing the Recommendation and Direction, however, the High Court had effectively questioned the extent of the power of both the OPR and the Minister. They were less concerned with a single dwelling development project and much more concerned with the extent and nature of their power to overrule local authorities in the making of development plans.
Both the OPR and the Minister appealed against the quashing of their Recommendation and Direction respectively. Neither the Developer nor DLRCC participated in the appeal (§78).
The Underlying Planning Issue
The Proposed Development is in an area served by two DART stations (Dalkey and Killiney) and comprising in considerable part substantial Victorian houses in large grounds. In other circumstances, the area would be considered suitable for ‘transport orientated development’ at 35/50 units per hectare (§10 and HC §5).
The premise of the OPR of central relevance to the case was that “the [Zoning Objective] was inconsistent with a national policy objective to deliver new homes within [an] existing built-up footprint...” (§6).
The High Court held that the decisions of the OPR and the Minister were unlawful because in assessing the consistency of the Development Plan with national policy they had focused on too small a part of the functional area of the planning authority and on too narrow a portion of national planning policy. In effect, the OPR had ‘asked itself the wrong question’, a classic ground of Judicial Review. (CA §7, 76, 111)
The Court of Appeal Judgment
“The core issue in the appeal is whether the OPR, in forming the opinion which it did, was entitled to focus on particular policy objectives rather than on the national and regional policy objectives as a whole; and...on the particular areas [covered by the Zoning Objective] rather than on the local authority area as a whole.” (§8, emphasis added)
In its engagement with DLRCC, the Court noted that the OPR had focused on a specific policy (compact development) in a specific (built-up) area (§39). “The exclusive focus of the OPR’s recommendation was on the [Zoning Objective] of the relevant areas of Killiney and Dalkey and the DART railway corridor.” (§49)
Minister Concerned with Legality not Policy
It is well established that “the [Direction] power...is directed to the legality of the development plan under consideration; as opposed to the proper planning and sustainable development of the planning area.” (§51) (See Tristor v Minister for the Environment [2010] IEHC 397, “which continues to provide guidance for the examination of the nature of the [Direction] power conferred on the OPR.” (§54) and Friends of the Irish Environment v Minister for Housing [2024] IEHC 588 and see [2025] IECA 128 (§60), also a challenge to a Ministerial Direction made on the recommendation of the OPR, see below)
The role of the Minister (s31AN and s31 PDA 2000, s63/5 and s65 PDA 2024 respectively) and the OPR (s31AM PDA 2000, s63/4 and s548 PDA 2024) is as law enforcers not law givers (§91) (and see Humphreys J in Friends). The role of the Minister is to supervise the policy-making process set out at §93, not make the policy (§91, 95). The question for the Minister is simply whether the local authority has complied with the law.
The Correct Approach to Consistency
The legal obligation of local authorities is to make a development plan consistent with national policy (s10(1A) PDA 2000, now s42(8)(b) PDA 2024). The “heart of the appeal” (§104) concerned the correct approach to be taken in assessing such consistency. Both the High Court and the Court of Appeal “drew heavily” (§82) on the judgment of Hogan J for a unanimous Supreme Court in Killegland Estates v Meath CC[2023] IESC 39 in discerning such approach.
