The Minister for Housing’s power to issue binding planning requirements that supersede local objectives has been upheld as constitutional by the Supreme Court.
In five largely concurring judgments, the judges agreed to dismiss the appeal by environmental activist John Conway which initially challenged An Bord Pleanála’s April 2022 permission for 545 rental apartments in Walkinstown, southwest Dublin.
The court said the Oireachtas was “fully entitled” to ensure local authority powers are exercisable in a way that conforms to national policy standards and, for this purpose, to enable the Minister to give directions under section 28(1C) of the Planning and Development Act.
Developer Silvermount’s planning application concerning the Naas Road site contained a statement identifying several ways the project would contravene the Dublin City Development Plan and the Naas Road Local Area Plan. The planning board noted contraventions of the Naas Road plan’s height, density and unit number requirements and a breach of the city plan.
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However, it approved the proposal on the basis the application complied with specific planning policy requirements in two sets of ministerial guidelines: the 2018 Urban Development and Building Heights Guidelines and the 2020 Sustainable Housing Design Standards for New Apartments Guidelines.
Local planning authorities and An Bord Pleanála must comply with specific planning policy requirements, which may take precedence over any conflicting policies or local development plan objectives. The height guidelines provide for increased building height in “appropriate” locations, preventing local councils from setting inflexible generic limits on buildings and allowing planners to determine heights on a case-by-case basis.
Mr Conway challenged the permission, alleging the section of law enabling the Minister for Housing to issue specific planning policy requirements was repugnant to the Constitution as it interfered with the role of local government.
The Supreme Court noted the parties agreed at the High Court hearing that the developer and planning authority would no longer be involved in the case and that Mr Conway would not seek to have Silvermount’s planning permission overturned.
The Minister, Ireland and the Attorney General remained in the case as the Co Louth resident pursued his constitutional challenge to the ministerial powers.
Mr Justice Richard Humphreys dismissed his case in April 2023 in the High Court, after finding a “cascade of factors” in favour of concluding section 28(1C) of the 2000 Act allows a delegation of power to the Minister.
Mr Conway appealed to the highest court, which found that section 28(1C) places significant constraints upon the Minister and sets definite boundaries. In the court’s lead judgment, Mr Justice Gerard Hogan said the Minister was not “at large” in exercising his section 28(1C) powers.
There was democratic accountability too as, while the Oireachtas could not formally approve or nullify any of the guidelines, the Minister making the guidelines was answerable to Dáil Éireann, he said.
Article 28A.1 of the Constitution requires a system of local government with some real powers, but these powers were not “inviolable”, the judge went on.
In a ruling of agreement, Chief Justice Donal O’Donnell said that, like his colleague Mr Justice Hogan, he found an element of the case trajectory “unsettling”. Mr Conway had a general objection to the use of section 28(1C) but no particular interest in invalidating Silvermount’s permission, the judge said.
While Mr Justice O’Donnell could understand the pragmatic considerations at play in ceasing challenging the specific development permission, a court “should be very slow to endorse” such a course.
Ms Justice Elizabeth Dunne, Mr Justice Maurice Collins and Ms Justice Aileen Donnelly wrote judgments that broadly concurred with their two colleagues. The case was dismissed.
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