Court finds against Gormley

Thu, Nov 11, 2010, 00:00

Environment Minister John Gormley acted outside his powers under the Planning Acts when he overturned the designation by Dun Laoghaire Rathdown County Council of The Park Village lands in Carrickmines as a "district centre", the Commercial Court has ruled.

Mr Justice Frank Clarke today found the Minister was not entitled to impose his own views on the proper planning and development of an area over those of the elected representatives of the Council who had designated the "district centre" in the area draft development plan 2010-2016.

The judge also ruled the Minister's directions were invalid because he failed to give interested parties, including Tristor Ltd, which planned to develop the Carrickmines District Centre, the opportunity to be heard on the measures to be adopted by the Minister, particularly his decision the lands at Carckmines should revert to being zoned for economc developmnent and employment.

On the basis of those and other findings, the judge granted an order to Tristor quashing the Minister's March 2010 directions that the districtcentre designation be overturned. He also directed the Council to reconsider the area development plan 2010-2016 in light of the court's findings the Council was no longer bound by the Minister's directions.

Tristor wants to develop the Park Village as a "district centre" having acquired the lands in 2006 and it alleged the Minister's directions, unless quashed, would cost 1,500 jobs, including 700 jobs in construction of the scheme.

A "district centre" allows for a development with considerably more retail floorspace than a "neighbourhood centre", a designation preferred by the Minister. A neighbourhoood centre involves a development of small groups of small shops of a local nature serving a small, localised catchment population.

In opposing Tristor's challenge, the Minister said he issued the directions because the draft development plan for the area did not comply with the Planning and Development Act 2000 in that it failed to set out "an overall strategy for the proper planning and sustainable development of the area".

Because of that "significant failure" to comply with the 2000 Act, including failure to comply with the Greater Dublin Area Retail Strategy, the Minister issued directions requiring the Council to amend the plan.

Mr Justice Clarke earlier this year heard a "telescoped" action in which he was asked to decide Tristor's applicaiton for leave to bring a judicial review challenge to the directions along with the substantive hearing of the case.

Tristor, with registered offices at the Herbert Building, The Park, Carrickmines, brought the proceedings against the Minister, Dun Laoghaire Rathdown County Council, Ireland and the Attorney General.

In his reserved judgment today, Mr Justice Clarke ruled the company had established substantial grounds entitling it to judicial review related to the proper interpretation of the Minister's powers under Section 31.1 of the 2000 Act and also relating to some fair procedures arguments. He went on to find Tristor was entitled to succeed on those grounds.

The central issue in the case related to construction of Section 31.1. The judge said that required, before the Minister could make directions, he had to reach a sustainable conclusion the Council breached its obligations to agree a development plan which set out an overall strategy for the proper planning ansd sustainable development of the area. Alternatively, the Miniuster must consider there was a significant failure to comply with some other feature of the 2000 Act.

Section 31 did not entitle the Minister to issue a direction simply because he disagreed with the strategy contained in the development plan and preferred another, the judge said. Nor did it require the Minister to consider the strategy proposed by the Council was a "proper strategy" but whether it was a strategy for the "proper planning and sustainable development of the area".

Many strategies could be adopted which would be consistent with the requirement for an overall strategy for the proper planning and sustaniable development of an area and it was for the Council to decide which of the range of possible strategies was to be included in the development plan. It was not for the Minister to "second guess" the Council.

The Council's plan had set out such an overall strategy and the Minister had not applied the appropriate criteria when he issued his directions, the judge ruled. The directions were therefore invalid and must be quashed.

If the Oireachtas intended to give the Minister the widespread power he claimed, it seemed Section 31 would have been diffferently expressed, the judge said. While there was no reason in principle the Oireachtas should not give the Minister such powers, that was a matter of policy, he added.

The judge also ruled the reasons given by the Minister for not favouring the "district centre" - that it was not in accordance with the Greater Dublin Retail Strtagtegy (DRS) and was likely to exacerbate car based traffic contrary to the Retail Planning Guidelines (RPG) - did not amount to breaches of the 2000 Act entitling the Minister to overturn the District Centre designation.

Neither the DRS nor the RPG had any legal status and, while a local, authority was more than entitled to have regard to them, there was no obligation on any local authority to be bound by them, he said.

If the Oireachtas considered such strategies and guidelines should be binding on local authorities, it should enact enabling legislaiton to give mandatory status to them.

There was nothing to indicate the Council did not have regard to the guidelines in reaching its decision, he added.