Cork County Council v (by Order) the Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 05 November 2021
• Neutral Citation: [2021] IEHC 683
• Court: High Court
• Docket Number: [2021 No. 189 JR]

Between

Cork County Council

Applicant

and

(By Order) the Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

The Office of the Planning Regulator

Notice Party

[2021] IEHC 683

[2021 No. 189 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Development plan – Variation – Appellant seeking an order of certiorari of a direction of the first respondent – Whether the recommendation by the notice party to the first respondent for the issue of a draft direction incorrectly proceeded on the basis that an updated joint retail strategy was required by the retail planning guidelines

Facts: Elected members of the applicant, Cork County Council, adopted the Cork County Development Plan 2014 on 8th December, 2014. On 12th February, 2018, the elected members of the council adopted variation No. 1 of the development plan. That variation was not challenged by either the notice party, the Office of the Planning Regulator (OPR), or the first respondent, the Minister for Housing, Local Government and Heritage. On 27th January, 2020, the elected members adopted variation No. 2. The OPR then issued a recommendation to the Minister under s. 31AM(8) of the Planning and Development Act 2000 on 21st February, 2020. This was a 25-page letter which included a draft direction that, if ultimately adopted, would have the effect of cancelling the variation under s. 31 of the 2000 Act. The letter stated that variation No. 2 failed to have “sufficient regard” to relevant key principles. On 5th March, 2020, the Minister issued a draft direction to the council based on the recommendation of the OPR. The final direction was issued by the Minister on 23rd December, 2020. Leave was granted on 15th March, 2021, the primary relief being an order of certiorari of the direction of 23rd December, 2020. The applicant also sought general declaratory relief and a declaration that s. 21(c) and para. 28 of schedule 1 of the Planning and Development (Amendment) Act 2018 are unconstitutional, and that the Planning and Development (Amendment) Act 2018 (Commencement) Order 2019 (S.I. No. 133 of 2019) was invalid. Every step in the process of the s. 31 direction was challenged by the council. Regarding the recommendation by the OPR to the Minister for the issue of a draft direction, four problems were identified: (i) incorrectly proceeding on the basis that an updated joint retail strategy is “required” by the retail planning guidelines; (ii) incorrectly proceeding on the basis of a read-across from a view of non-compliance with the guidelines to a conclusion of lack of an overall strategy; (iii) a misapplication of the concept of an overall strategy by reference to considering a wider area than the functional area of the council concerned; and (iv) having regard to irrelevant considerations.

Held by the High Court (Humphreys J) that he regarded each of the four points above as separate and independent grounds for certiorari and that he would grant that order under any one of those headings and certainly under all four collectively. Humphreys J held that certiorari followed because the ultimate making of the direction was premised on the necessary prerequisite of a valid proposed draft direction by the OPR. Humphreys J held that, in the absence of a valid proposal the ultimate decision must fall.

Humphreys J held that there would be an order in terms of para. 1 of the statement of grounds, namely certiorari of the final ministerial direction. Humphreys J held that he would adjourn all other reliefs or consequential orders for further submissions including the question of any possible consequential relief by reference to s. 31(6) of the 2000 Act or otherwise.

Application granted.

JUDGMENT of Humphreys J. delivered on Friday the 5th day of November, 2021

“[M]inisterial guidelines are what they are described to be, namely guidelines, and while they cannot by statute be ignored, and indeed while the obligation to have regard to them is one stated in positive terms, they are not prescriptive or mandatory in the sense in which a development plan is, in the language of McKechnie J. in Byrne v. Fingal County Council [ [2001] IEHC 141, [2001] 4 I.R. 565], ‘a representation in solemn form’ binding on the local authority and in respect of which it is not merely mandated as a matter of law, but also required as a matter of both public and private law, to frame its deliberations.” (Baker J. in Brophy v. An Bord Pleanála [2015] IEHC 433, ( [2015] 7 JIC 0306 Unreported, High Court, 3rd July, 2015), para. 36).

“[I]t appears to me to be entirely proper and necessary to construe the terms of such legislation carefully … While it is within the competence of the Oireachtas to amend the [Planning and Development Act 2000] so as to confer on the Minister additional powers that impact on existing planning structures and processes, it should do so clearly and precisely and the courts should avoid giving such legislation effect beyond what is clearly provided for. It is essential that the respective competencies of all of the actors involved – Minister, planning authorities and [An Bord Pleanála] – should be clearly delineated … I agree with the High Court Judge that any such power needs to be conferred by clear statutory language.” (Collins J. (Costello and Donnelly JJ. concurring) in Spencer Place Development Company Ltd. v. Dublin City Council [2020] IECA 268, ( [2020] 10 JIC 0202 Unreported, Court of Appeal, 2nd October, 2020), para. 28).

“It seems to me, therefore, that the Minister asked himself the wrong question. It is clear from the submissions made to the Court that the Minister considered that s. 31 [of the Planning and Development Act 2000] permitted him to impose, by direction, his own views on the proper planning and development of an area over those of the elected local representatives. For the reasons which I have sought to analyse, it does not seem to me that the Act entitles the Minister to do that. Rather, the Minister must ask himself whether there is a significant failure to comply with provisions of the 2000 Act other than s. 10 or, in the context of s. 10, must ask himself whether the plan actually has a strategy which is set out in it and which complies with the mandatory obligations provided for in s. 10(2) which apply to such plans. If the Oireachtas wishes the Minister to have a wider power to interfere with draft development plans formulated by local authorities, then it seems to me to be incumbent on the Oireachtas to set out precisely how and in what circumstances such a power can be exercised.” (Clarke J. in Tristor Ltd. v. Minister for Environment, Heritage and Local Government [2010] IEHC 397, ( [2010] 11 JIC 1103 Unreported, High Court, 11th November, 2010), para. 7.19).

1 In January 2012, the respondent Minister's predecessor issued the Spatial Planning and National Road Guidelines under s. 28 of the Planning and Development Act 2000. They were followed by the Retail Planning Guidelines in April 2012, again under s. 28 of the 2000 Act.

2 The Cork County Development Plan 2014 was adopted by the elected members of Cork County Council on 8th December, 2014.

3 The county council and Cork City Council jointly prepared the Metropolitan Cork Joint Retail Strategy 2015. This did not deal specifically with retail outlet centres.

4 On 12th February, 2018, the elected members of the council adopted variation No. 1 of the development plan, which provides for the inclusion of a reference to retail outlet centres and to a proposal for detailed evidence-based assessment to confirm the need for such developments and to identify potentially suitable locations. That variation was not challenged by either the Office of the Planning Regulator (OPR) or the respondent Minister.

5 On 12th December, 2018, the city council withdrew from a joint study into the requirement for a retail outlet centre in the Cork Metropolitan Area on the basis of a policy reassessment that would have a different focus from outlet centres, based on the migration of retail online, among other factors. It was clearly understood at the time that the county council would continue with the study and that the city council would be a consultee.

6 The study did indeed continue and a report was issued in October 2019: Study on the Requirement for Retail Outlet Centre(s) in the Cork Metropolitan Area. That was informed among other things by the Retail Planning Guidelines 2012 and the Cork Joint Retail Strategy 2015 and identified capacity for an additional retail outlet centre.

7 On 14th November, 2019, the council published notice of a proposed variation No. 2 to outline the council's vision regarding retail outlet centres consistent with the study. It determined that there was capacity for a retail outlet centre in the Cork Metropolitan Area and proposed that the most appropriate location for such a centre was in the NE-2 sub-catchment (N25). The variation proposed the inclusion of a new objective TCR 10–2 Retail Outlet Centre supporting the provision of a retail outlet centre in that area, although no specific location was identified.

8 On 21st November, 2019, the OPR made a submission to the council stating that the matter had been considered under s. 31AM(1) and (2) of the 2000 Act. The submissions stated that the joint strategy “required” under the 2012 retail guidelines “have ( sic) not been updated to address policy and locational aspects of planning for retail outlets”. The submission said that the preferred sub-catchment was insufficiently specific. The punchline was that the OPR was not satisfied that the variation had taken “sufficient account” of the retail guidelines and that its adoption would be “premature pending emerging and proposed strategies and plans”. For those reasons it was said that a recommendation was proposed, although it does not fully...