Conway v an Bord Pleanala and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 18 April 2023
• Neutral Citation: [2023] IEHC 178
• Docket Number: [2022 No. 474 JR]
• Court: High Court

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000, as Amended

Between:

John Conway

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Silvermount Limited

Notice Party

[2023] IEHC 178

[2022 No. 474 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning and development – Constitutional validity – Planning and Development Act 2000 s. 28(1C) – Applicant challenging the constitutional validity of s. 28(1C) of the Planning and Development Act 2000 – Whether s. 28(1C) of the 2000 Act is an unconstitutional delegation of legislative power

Facts: The applicant, Mr Conway, applied to the High Court challenging the constitutional validity of s. 28(1C) of the Planning and Development Act 2000 and the legal validity of two guidelines made under that provision. On the State respondents’ undertaking, on the basis of this case only and not so as to create a precedent, not to raise in the High Court or any appellate court any issue regarding the applicant’s standing, the form of the proceedings, or the entitlement of the applicant to rely on the factual matrix in which the issues against the State arose, and on the parties’ agreement that the State respondents were also entitled to rely on such factual matrix, and that in the event of the applicant obtaining a declaration against the State, such declaration would not affect the validity of the permission of the notice party, Silvermount Ltd, it was agreed that the court would order as follows: (i) that relief 1 in the statement of grounds (certiorari of the decision of the first respondent, An Bord Pleanála) be struck out; (ii) that the notice party be excused from further participation; (iii) that there be no order as to costs as between the notice party and other parties; and (iv) that the foregoing order be perfected forthwith. The remaining reliefs were as follows: (2) a declaration that s. 28(1C) is repugnant to Articles 15.2.1˚, 15.2.2˚ and/or Article 28.1˚ of the Constitution; (3) a declaration that the ‘Urban Development and Building Heights Guidelines’, dated December 2018, and/or the ‘Sustainable Urban Housing: Design Standards for New Apartments’, made by the Minister for Housing, Planning and Local Government under s. 28(1C), and/or such parts of Guidelines insofar as they contain Specific Planning Policy Requirements (SPPRs), are ultra vires and/or void; (4) such declaration(s) of the legal rights and/or legal position of the applicant and (if and insofar as legally permissible and appropriate) persons similarly situated, and/or of the legal duties and/or legal position of the respondent as the Court considers appropriate; (5) a declaration that the proceedings are covered by the protective costs provisions of s. 50B of the 2000 Act, and/or the Environment (Miscellaneous Provisions) Act 2011 and/or otherwise; (6) such further or other order as the Court shall deem fit; and (7) the costs of the proceedings.

Held by Humphreys J that while sub-s. (1C) appeared wide on its face, there were sufficient principles, policies and constraints to limit it significantly, that it was a reasonable and non-abdicatory conferral of a power to make secondary law in circumstances where there was an objective need for flexibility in relation to the subject matter, and where the system of which the power formed part was one that relied very considerably on the delegated exercise of functions, including policy-making functions, by local authorities. He held that s. 28(1C) was not an unconstitutional delegation of legislative power. He held that the function conferred on the Minister to make guidelines, including specific planning policy requirements, was not an administrative power properly considered. Humphreys J held that the applicant’s argument in relation to ultra vires of the specific guidelines essentially boiled down to the proposition that even if sub-s. (1C) was not unconstitutional by reason of lack of principles or policies, the lack of such principles and policies meant that the impugned instruments where themselves invalid. Humphreys J held that the basic problem with that argument was that it was predicated on there being a lack of relevant principles and policies, whereas he considered that there were such principles and policies applicable.

Humphreys J held that the proceedings would be dismissed, and in the absence of submissions to the contrary within seven days, the order would be perfected at that point with no order as to costs.

Proceedings dismissed.

JUDGMENT of Humphreys J. delivered on the 18 ^th day of April, 2023

1 . The applicant challenges the constitutional validity of s. 28(1C) of the Planning and Development Act, 2000 and the legal validity of two guidelines made under that provision.

2 . The issue arose out of a submission made by the applicant on a planning application made on 15 ^th December, 2021 under s. 4 of the Planning and Development (Housing) and Residential Tenancies Act, 2016. In that application, the notice party sought permission for 545 build-to-rent apartments, commercial retail and office units, a childcare facility and associated development at Concord Industrial Estate, Naas Road, Walkinstown, Dublin 12.

3 . The developer's application contained a material contravention statement dated December 2021 identifying a number of material contraventions of the Dublin City Development Plan 2016–2022 and the Naas Road Local Area Plan 2013 in relation to building height and unit mix. These contraventions were said to be justifiable by reference to the Urban Development and Building Heights Guidelines, December 2018 and the Sustainable Urban Housing Design Standards for New Apartments Guidelines, December 2020, both issued under s. 28 of the 2000 Act and containing specific planning policy requirements (SPPRs) under sub-s. (1C) of that section.

4 . The board's inspector found that there was a material contravention of the relevant plans (see para. 12.3.13 of the report), but recommended that permission be granted notwithstanding that, on the basis of SPPR 3 of the Height Guidelines (see paras. 12.3.15 and 12.3.19) and SPPRs 4, 5, 7 and 8 of the Apartment Guidelines (see paras. 12.4.9, 12.4.11, 12.4.20, 12.4.30 and 12.4.54).

5 . The board issued a direction on 19 ^th April, 2022 recommending a grant of permission subject to conditions, and a formal order to that effect was made on 21 ^st April, 2022. The board's order referred to the inspector's report, acknowledged material contraventions regarding building heights and made explicit reference to SPPR 3(A) in the Building Height Guidelines. While the board's decision did not refer to the Apartment Guidelines, an apparent reliance on such guidelines to justify the material contravention is suggested by the board's adoption of the inspector's report. The board didn't seem to dispute this in their opposition papers, and while the State put the applicant on formal proof of the matter, the point wasn't strongly pressed at the hearing and I don't think anything turns on that.

Procedural history

6 . The proceedings were commenced on 7 ^th June, 2022. Leave was granted on 20 ^th June, 2022 and statements of opposition were filed on 25 ^th and 27 ^th October, 2022.

7 . Various skirmishes took place in relation to costs protection and, ultimately, a hearing date was fixed for 28 ^th March, 2023. On the first day of the hearing, following the applicant's oral submission, the board indicated that it did not wish to contribute to the hearing and asked to be excused. On the second day of the hearing, 29 ^th March, 2023, it was agreed by the parties that the applicant could proceed with the challenge to the legislation and guidelines without the need to involve the notice party or to challenge the specific decision in which the validity issues arose. The object of that agreement was to avoid the developer becoming, as the notice party put it, “collateral damage” in a constitutional action, but, at the same time, to allow the applicant to proceed with the challenge without impediment.

8 . Thus, on the State respondents' undertaking, on the basis of this case only and not so as to create a precedent, not to raise in the High Court or any appellate court any issue regarding the applicant's standing, the form of the proceedings, or the entitlement of the applicant to rely on the factual matrix in which the issues against the State arose, and on the parties' agreement that the State respondents are also entitled to rely on such factual matrix, and that in the event of the applicant obtaining a declaration against the State, such declaration would not affect the validity of the notice party's permission, it was agreed that the court would order as follows:

(i) that relief 1 in the statement of grounds ( certiorari of the decision of the board) be struck out;

(ii) that the notice party be excused from further participation;

(iii) that there be no order as to costs as between the notice party and other parties; and

(iv) that the foregoing order be perfected forthwith.

9 . While the question of the impact on costs protection vis-à-vis the State wasn't specifically discussed at that stage, it certainly wasn't my intention in making that order (nor was it suggested by anybody) that the applicant would thereby be deprived of any costs protection rights that he would otherwise have enjoyed.

Relief sought

10 . With relief 1 thereby addressed, the remaining reliefs are as follows:

“2. A Declaration that s. 28(1C) of the Planning and Development Act 2000 (as amended) is repugnant to Articles 15.2.1°, 15.2.2° and/or Article 28.1° of the Constitution.

3. A Declaration that the ‘Urban Development and Building Heights Guidelines’, dated December 2018, and/or the ‘Sustainable Urban Housing: Design Standards for New...