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

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 27 May 2022
• Neutral Citation: [2022] IEHC 281
• Court: High Court
• Docket Number: [2021 No. 631 JR]

Between

Cork County Council

Applicant

and

The Minister for Housing, Local Government and Heritage

Respondent

and

Cork City Council

Notice Party

[2022] IEHC 281

[2021 No. 631 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Requirement – Planning and Development Act 2000 s. 9(7) – Applicant challenging a requirement under s. 9(7) of the Planning and Development Act 2000 – Whether the power to require co-ordination extends to enable the respondent to require agreement

Facts: In Cork County Council v Minister for Housing Local Government and Heritage (II) (No. 1) [2021] IEHC 617, the High Court (Hyland J) discharged a stay on the requirement of the respondent, the Minister for Housing, Local Government and Heritage, to the applicant, Cork County Council, under s. 9(7) of the Planning and Development Act 2000 to co-ordinate its development plan with Cork City Council. In Cork County Council v Minister for Housing, Local Government and Heritage (I) (No. 1) [2021] IEHC 683, Humphreys J quashed a direction by the Minister under s. 31 of the 2000 Act to remove Variation No. 2 to the Cork County Development Plan. 4. In Cork County Council v Minister for Housing, Local Government and Heritage (I) (No. 2) [2021] IEHC 708, Humphreys J granted a limited stay on that order. The applicant challenged the s. 9(7) requirement. Three points were advanced in legal submissions which were objected to on behalf of the respondent as falling outside the pleadings. The applicant’s pleaded domestic law points were as follows: whether the power to require co-ordination extends to enable the Minister to require agreement (core ground 7); whether the Minister requires a substantive policy outcome (core ground 7); the alleged improper connection with the invalid s. 31 direction (core grounds 1 and 2); the alleged failure to give reasons for the decision itself (core ground 4); the failure to consider relevant considerations (core ground 3); the alleged lack of specification as to what the Minister took into account (core ground 5); the claim that the power was exercised for an improper purpose (core ground 6); the validity of the requirement to submit joint proposals or engage with an independent person (core ground 7); the complaint that, insofar as the requirement involved the Minister making a decision in the absence of agreement, that was ultra vires (core ground 7); and the lack of fair procedures in the absence of advance notice of the requirement (core ground 4).

Held by Humphreys J that he would uphold all three pleading objections by the State. Humphreys J held that as he was deciding the case in favour of the council on domestic law grounds, the EU law points made under the SEA directive 2001/42/EC did not need to be decided.

Humphreys J granted the order of certiorari sought in para. 1 of the statement of grounds removing for the purpose of being quashed the requirement under s. 9(7) of the 2000 Act, it being understood by agreement that para. 1 is to be read as seeking to quash both versions of the letter i.e., that to the county council (copied to the city council) and that to the city council (copied to the county council). Humphreys J listed the matter for mention on the 20th of June, 2022 for any consequential orders.

Relief granted.

(II) (No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 27th day of May, 2022

1 The history of this matter involves two related sets of proceedings which I shall refer to as Cork I [2021 No. 189 JR] relating to a direction under s. 31 of the Planning and Development Act 2000 and Cork II [2021 No. 631 JR] relating to a requirement under s. 9(7) of that Act.

2 In Cork County Council v. Minister for Housing Local Government and Heritage (II) (No. 1) [2021] IEHC 617, ( [2021] 9 JIC 0701 Unreported, High Court, 7th September, 2021), which was the judgment first in time but in the second set of proceedings, Hyland J. discharged a stay on the Minister's requirement to Cork County Council (“the council” unless the context otherwise requires) under s. 9(7) of the 2000 Act to co-ordinate its development plan with Cork City Council. That requirement, the validity of which I am now assessing, was the first ever exercise of the statutory power to require co-ordination, or of the corresponding power under previous legislation.

3 In Cork County Council v. Minister for Housing, Local Government and Heritage (I) (No. 1) [2021] IEHC 683, ( [2021] 11 JIC 0502 Unreported, High Court, 5th November, 2021), I quashed a direction by the Minister under s. 31 of the Planning and Development Act 2000 to remove Variation No. 2 to the Cork County Development Plan.

4 In Cork County Council v. Minister for Housing, Local Government and Heritage (I) (No. 2) [2021] IEHC 708, ( [2021] 11 JIC 1810 Unreported, High Court, 18th November, 2021), I granted a limited stay on that order.

5 I am now dealing with the substantive challenge to the s. 9(7) requirement.

Facts

6 In April 2012, ministerial retail planning guidelines were issued envisaging that local authorities would prepare retail strategies and in certain instances (including in Cork) to adopt joint retail strategies. The guidelines were not in themselves binding, but councils were required to have regard to them.

7 In March 2013, a retail study for Cork was carried out by John Spain Consultants.

8 In December 2013, a draft joint retail strategy was prepared by the two Cork local authorities.

9 The Cork County Development Plan 2014 was adopted on 8th December, 2013. That came into effect on 15th January, 2014.

10 In March 2015, the Cork authorities adopted the joint retail strategy, although this did not address the question of retail outlet centres.

11 In February 2018, Variation No. 1 to the County Development Plan was adopted.

12 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. It was understood that the county council would continue with the study and that the city council would be a consultee.

13 In May 2019, the city boundary was extended into what had been county council territory.

14 In October 2019, the retail study was issued in the form of a report prepared by MacCabe Durney Barnes Consultants which concluded that there was scope for a retail outlet centre in the Cork metropolitan area.

15 On 14th November, 2019, the county council proposed draft Variation No. 2 to the Development Plan which included provision for a retail outlet centre. The Office of the Planning Regulator (OPR) made a submission hostile to that variation on 21st November, 2019.

16 The Chief Executive of the county council reported on submissions on 20th December, 2019.

17 Variation No. 2 was adopted on 27th January, 2020.

18 Notice was given to the OPR on 30th January, 2020. A recommendation was made by the OPR to the Minister to issue a draft direction for the removal of the variation on 21st February, 2020.

19 The Minister issued a draft direction under s. 31 of the 2000 Act on 5th March, 2020, and under s. 31(6), Variation No. 2 ceased to have effect as a result.

20 In the meantime, on 12th March, 2020, the county council gave notice of intention to review the Development Plan and to prepare a new Development Plan.

21 Public consultation on the draft ministerial direction took place between 19th March and 27th May, 2020, and the Chief Executive reported thereon on 23rd June, 2020.

22 The OPR recommended under s. 31AN of the 2000 Act that a s. 31 direction be served on 14th July, 2020.

23 On 20th August, 2020, the Cork authorities jointly published a request for tenders for a joint retail study and strategy for inclusion in the respective development plans.

24 In October 2020 both councils agreed to terms of reference for an updated joint retail study. That did not include retail outlet centres, apparently at the request of the county council which was agreed to by the city council.

25 The Minister issued the s. 31 direction on 23rd December, 2020.

26 The council subsequently indicated an intention to challenge that direction and on 3rd March, 2021 the OPR wrote to the Minister asking whether anything could be done about the council's intention in that regard. The letter states as follows:

“Dear Minister

I trust you are keeping safe and well.

I refer to my letter to you on the 14th July 2020 wherein I gave notice pursuant to section 31AN(4) of the Planning and Development Act 2000 (as amended) in relation to Variation No.2 of the Cork County Development Plan 2014.

Such notice contained a recommendation to issue a Direction to Cork County Council to remove policy amendments in the above plan in support of retail outlet village type development.

After his own careful consideration of our recommendation as well as all the relevant matters, Minister Peter Burke issued the Direction in December 2020.

At a meeting on Monday 1st March last with both local authorities on the progression of a Joint Retail Strategy required for the impending 2022–2028 development plan reviews, I was informed by the Chief Executive of Cork County Council that his authority intends to bring forward Judicial Review proceedings in respect of said Direction in relation to the current and soon to expire county development plan, the nature of which application to the Court is unknown at this time.

As Chief Executive of the OPR, I am very concerned about the possibility of such proceedings being brought, at a sensitive time, by a public body against presumably you as Minister and the OPR as a body under your aegis.

We follow the Code of Practice for the Governance of State Bodies. This states that where the possibility of legal disputes involve another State body arise, unless otherwise required by statute,...