Cork County Council v The Minister for Housing, Local Government and Heritage

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 07 September 2021
• Neutral Citation: [2021] IEHC 617
• Docket Number: 2021 No. 631JR
• Court: High Court

Between:

Cork County Council

Applicant

and

The Minister for Housing, Local Government and Heritage

Respondent

and

Cork City Council

Notice Party

[2021] IEHC 617

2021 No. 631JR

THE HIGH COURT

Ex Tempore Judgment of Ms. Justice Niamh Hyland of 7 September 2021

Introduction

1 This is an application for a stay by Cork County Council (the “applicant”) in relation to the Direction of the Minister for Housing, Local Government and Heritage (the “respondent”) made on 22 April 2021 under s.9(7) of the Planning and Development Act 2000 (as amended) (the “2000 Act”). An interim stay was granted by Meenan J on 12 July 2021, being the same date leave was granted to bring judicial review proceedings, with liberty given to the Minister to seek to lift the stay on notice of one week to the applicant herein. A motion was brought by the respondent seeking to lift the stay on 24 August 2021 returnable for 31 August. It was decided to put the matter in for hearing on 2 September 2021. The applicant filed a replying affidavit on 31 August 2021. Although the respondent is seeking to lift the stay, relevant case law makes it clear that in such circumstances the burden of proof rests upon the party seeking a continuation of the stay. Accordingly, the applicant bears the burden of persuading me that a stay should be imposed.

Legal Test for Stay

2 All parties agreed that the relevant test is that as set out in Okunade v. Minister for Justice Equality and Law Reform [2012] 3 IR 152, and summarised therein at paragraph 104. The parties also agree that, where an argument based on EU law is raised in the proceedings, there is a “gloss” on the Okunade test, as identified in Friends of the Irish Environment v. Minister for Communications, Climate Action and Environment & Ors. [2019] IEHC 555, following the Supreme Court decision of Dowling v. Minister for Finance [2013] 4 I.R. 576. I will discuss the precise parameters of that test when I consider the argument in relation to Strategic Environmental Assessment below.

Summary of Facts

3 The parties are familiar with the facts. Because this is an ex tempore decision, I will not recite same in any detail. However, in summary the pertinent events are as follows.

4 In 2012 Retail Planning Guidelines were adopted under s.28 of the 2000 Act as amended. In the Minister's foreword, it was identified that planning for the retail sector must focus, inter alia, on:

• • the creation of vibrant, quality places, accessible by sustainable transport;

• • planning for retail catchments that invariably straddle and transcend administrative boundaries;

• • a general presumption against large retail centres located adjacent or close to existing, new or planned national roads / motorways.

5 Chapter 3 is entitled “Retailing and Spatial Planning”. Section 3.3 is headed up “Development Plans and Retailing” and provides that the function of the development plan is to establish an overall strategy for the proper planning and sustainable development of its area.

6 At Section 3.5 of the Guidelines, entitled Joint or Multi-Authority Retail Strategies, it is noted that while planning authorities will prepare development plans for their functional areas, the nature of the retail sector is such that the catchments for such activity frequently transcend local authority boundaries. Accordingly, certain development plans and local area plans must be informed by joint or multi-authority retail strategies which should assess retail activity and demand needs that transcend planning authority boundaries. Annex 3 gives guidance on the preparation of joint or multi-authority retail strategies. In order to give these strategies statutory backing, the policies and objectives of the strategy should be adopted into the development plan.

7 Table 1 identifies authorities where joint or multi-authority retail strategies must be prepared. Cork City and County Councils are included in the list of same.

8 The importance of these Retail Guidelines is hard to overstate in the context of this application. The Guidelines clearly state that Cork County Council and Cork City Council must prepare a joint retail strategy. This is identified at paragraph 3.5. The development plans of both local authorities must be informed by this strategy. This is because the catchments for retailing frequently transcend both local authority boundaries. The development plan must be evidence-based by way of supporting analysis and data to guide decision making and be consistent with the approach of these guidelines.

9 Outlet stores are defined at Annex 1 as “Outlet Centres Groups of retail units in particular focusing on fashion and accessories which are generally associated with designer groups. They specialise in selling surplus stock and end-of-line goods at discounted prices”.

Relevant Legislative Provisions

10 Section 9 of the 2000 Act is entitled “Development Plans”. Section 9(4) provides that in making a development plan in accordance with Chapter 1 of Part II of the 2000 Act, a planning authority shall have regard to the development plans of adjoining planning authorities and shall co-ordinate the objectives in the development plan with the objectives in the plans of those adjoining authorities except where the planning authority considers it to be inappropriate or not feasible to do so.

11 Sub section 7 of s.9 provides as follows:

• (7)(a) The Minister may require 2 or more planning authorities to co-ordinate the development plans for their areas generally or in respect of specified matters and in a manner specified by the Minister.

• (b) Any dispute between the planning authorities in question arising out of the requirement under paragraph (a) shall be determined by the Minister.

12 The Retail Guidelines were made by the Minister under s.28 and planning authorities shall have regard to those guidelines in the performance of their functions. Under s.28(1A), in so doing they must consider the policies and objectives of the Minister contained in the Guidelines when preparing and making the draft development plan and the development plan and append a statement to the draft development plan and the development plan which shows how the planning authority has implemented the policies and objectives of the Minister contained in the Guidelines. If a planning authority has formed the opinion it is not possible to implement certain policies and objectives of the Minister contained in the guidelines, when applying those policies to the development plan or draft, it must give reasons why the policies and objectives of the Minister have not been so implemented.

History of the dispute

13 Initially both local authorities appear to have recognised that the catchment for a retail outlet centre would indeed transcend their local authority boundaries, as the McCabe Durney Barnes report of 2019 records that the brief for a study to consider the need for a retail outlet centre in the Cork Metropolitan area was identified by both local authorities. This process was started, and six sites were identified in the Cork Metropolitan area. That area straddles both local authority areas. However, for unexplained reasons, at a certain point, that joint strategy was abandoned. This may be seen clearly at paragraph 8.1 of the report McCabe Durney Barnes where it identifies that only those three locations that were within the County Council area of Cork were brought forward for detailed assessment.

14 Following this report, a variation to the Cork County Development Plan 2014 was made, known as ‘Variation 2’, that identified a preferred location for a retail outlet centre to serve the Cork metropolitan area. That was the subject of a s.31 direction by the respondent which directed removal of Variation 2. The s.31 decision was challenged by way of a leave application on 15 March 2021 and is listed for hearing on 19 October 2021.

15 There are various grounds of challenge in those proceedings, including those relating to inadequacy of reasons, unlawful delegation, and unconstitutionality of the statutory provision. There are also grounds that challenge whether the respondent in that case was correct in identifying that a joint retail strategy was required under the Retail Planning Guidelines and that challenge the necessity for compliance with guidelines adopted under s.28 of the 2000 Act.

16 Both local authorities commenced working on their respective draft development plans over the course of 2020.

17 Terms of Reference had been agreed between the local authorities in relation to the joint retail strategy, thus observing the requirements under the 2012 Retail Guidelines but these did not include a strategy in relation to retail outlets. Work on the joint retail strategy is currently ongoing.

Section 9(7) Direction

18 The respondent became aware of this gap in the Terms of Reference and issued the s.9(7) Direction the subject of these proceedings. He indicated in the Direction that he was writing to require the local authorities to co-ordinate ongoing development plan review processes in respect of specified matters. Those matters were consideration of retail outlet centres not addressed by the Terms of Reference for the joint retail strategy in respect of the Cork City and County Development Plans for 2022–28. He stated that the two local authorities were to jointly determine whether there is capacity and scope for retail outlet centre development in Cork City and County. He indicated the work could be an addendum to the current joint retail strategy or a separate report. He noted the required outcome of the co-ordinated process is agreement in respect of the potential provision of retail outlet centre development and if applicable the general location, format and scale of any retail outlet development that may be permissible. He noted that should it not be possible to reach agreement, the...