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: 18 November 2021
• Neutral Citation: [2021] IEHC 708
• Docket Number: [2021 No. 189 JR]
• Court: High Court

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 708

[2021 No. 189 JR]

THE HIGH COURT

JUDICIAL REVIEW

(No. 2)

JUDGMENT of Humphreys J. delivered on Thursday the 18th day of November, 2021

1 In ( [2021] IEHC 683 Cork County Council v. Minister for Housing, Local Government and Heritage (No. 1) Unreported, High Court, 5th November, 2021), I granted certiorari of a ministerial direction of 23rd December, 2020 cancelling variation No. 2 to the Cork County Development Plan, and adjourned the question of any further orders for supplementary submissions. Having received such submissions, and having allowed an amendment to the statement of grounds (that order implying the grant of leave to seek the relief thereby permitted) and, insofar as it was necessary (which I don't think it was) an extension of time for that purpose, I now deal with those orders.

Matters agreed

2 It is agreed that consequential relief should follow in the form of the declaration sought in the amended statement of grounds that the ministerial notice of 5th March, 2020 is invalid. The notice had the effect under s. 31(6)(a) of the Planning and Development Act 2000 that the variation ceased to operate, so declaring that notice invalid will cause variation No. 2 to spring back into life, absent a stay.

3 It is also agreed that the relief regarding the unconstitutionality of the 2000 Act would be adjourned generally with liberty to re-enter.

4 Costs are to follow in favour of the applicant on a 50/50 basis each as against the board and the OPR, and it seems to be accepted there would be a stay on costs on the usual terms.

Whether there should be a stay on the declaration

5 The one matter that was not agreed was whether there should be a stay on the declaratory relief; in particular, a stay limited to regard being had to the variation for the purposes of considering any individual planning applications. The State and OPR didn't seem to be strongly pressing for a stay for other purposes (such as treating the variation as part of the existing development plan for the purpose of the preparation of a new plan).

6 The most pertinent case is Okunade v. Minister for Justice, Equality and Law Reform [2012] IESC 49 [2012] 3 I.R. 152 per Clarke J. at 193, to the effect that in considering whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings the court should apply a number of considerations.

7 The court should first determine whether the applicant has established an arguable case; if not the application must be refused. “Applicant” here means applicant for a stay. One can say that the State/OPR position is arguable, but that isn't saying much.

8 The court should consider where the greatest risk of injustice would lie, and in doing so the court should give weight to a number of factors.

9 Firstly, give all appropriate weight to the orderly implementation of measures which are prima facie valid. Admittedly the variation is prima facie valid; but so would the direction have been but for the proceedings. So this heading doesn't really determine much. Unlike Okunade, a clash between public bodies making conflicting decisions doesn't raise quite the same presumption in favour of a single public law decision challenged by a private law actor.

10 Secondly, give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made. That adds something to the council's position, but maybe not a whole lot. Is it crucially in the public interest for a planning permission to be considered under variation No. 2 in the dying months of the old plan, while a new plan is on the brink of being enacted? While of some weight, I am not certain that that is a matter of decisive weight. Of relevance under this heading is the State's argument that a stay would not prejudice the council because the council says it does not intend to grant individual planning permissions based on variation No. 2 given that the variation doesn't identify a specific area for development, more a broad general location. The council seems to accept that premise but not the conclusion, although I amn't sure why, and indeed more generally I had the impression that neither side had entirely shared their wargaming with the court. I'm not suggesting they should have, but all I can do is work with what I have been given. It was also submitted that a stay would deprive the council of the fruits of the judgment, but that assumes that the grant of a permission under the variation at this point, without further policy work, would be a “fruit” of the judgment, which is debatable for the reasons stated above. Even if it was, the grant of a stay in the sort of terms discussed would mean...