Cork council wins challenge to Minister’s direction over planning

Judge highlights misunderstanding in Minister’s approach to issue

Cork County Council has won a High Court challenge over a Minister's direction that it should annul a change to its development plan which provides for a €100 million retail "outlet centre" in the east of the county.

The challenge related to a variation to the current plan made by councillors, and supported by chief executive Tim Lucey.

The Office of the Planning Regulator (OPR), which independently assesses councils’ forward planning and zoning decisions, recommended to the Minister for Housing Government and Local Heritage that the decision should be reversed.

The regulator, Niall Cussen, said the decision was premature and should not have been made prior to the preparation of an updated joint retail strategy for the entire Cork metropolitan area, as required by ministerial retail planning guidelines.

The Minister, in December last year, issued a direction to the council that it cancel the decision on grounds including that the variation to the development plan failed to set out an overall strategy for the proper planning and sustainable development of the area.

The Minister also said the variation to the plan was in advance of an updated joint retail strategy which was required to ensure consistency with the Guidelines on Retail Planning.

The council brought a High Court challenge over the Minister’s direction and the OPR was a notice party. The council claimed, among other things, its proposal took account of the vitality/viability criteria for city and town centres in those guidelines.

It said the change should not have an adverse impact on those other centres and can be of significant benefit to and an important contributor to the life and vitality of the metropolitan economy.

It also challenged the constitutionality of the relevant part of the Planning and Development (Amendment) Act 2018 and the validity of associated regulations.

The Minister denied the claims.

Quashed

In a judgment on Friday, Mr Justice Richard Humphreys quashed the Minister's direction.

He said, among other things, the Minister incorrectly proceeded on the basis an updated retail strategy was required.

The misunderstanding that permeated the approach of the OPR and the Minister was unfortunately fundamental, he said.

He said specific planning policy requirements (SPPRs) are mandatory, but otherwise the duty in relation to them is to “have regard to them, not to comply with them”.

The OPR and the Minister attempted to “turbo-charge non-binding guidelines” by drawing the conclusion that non-compliance contributed to a conclusion that the council was in breach of Section 10 the Planning and Development Act 2000 relating to setting out an overall strategy for sustainable development. This was “unfortunately a rewriting of the Act” he said.

It would not be that difficult for the Minister to impose actual binding requirements either through SPPRs or through the use of other powers under the Act.

Instead, the OPR and the Minister were trying to shoehorn the circumstances here into the process even though the council did not fail to comply with any requirement that was actually binding on it, he said.

The judge also said local authorities, other stakeholders and interested parties more generally need to have clarity as to whether any individual guideline or policy document is subject to a “have regard to” obligation or a mandatory obligation.

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