Judge finds Gormley acted outside powers over planning


MINISTER FOR the Environment John Gormley acted outside his powers when he overturned the designation by Dún Laoghaire Rathdown County Council of The Park Village lands in Carrickmines as a “district centre”, the Commercial Court has ruled.

A “district centre” allows for a development with considerably more retail space than a “neighbourhood centre”, a designation preferred by the Minister.

A neighbourhood centre involves a development of small groups of small shops serving a small population.

Mr Justice Frank Clarke yesterday 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 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 basis of those and other findings, the judge granted an order to Tristor quashing the Minister’s March 2010 directions that the district centre designation be overturned. He directed the council to reconsider the area development plan 2010-2016 in light of the court’s findings that the council was no longer bound by the Minister’s directions.

In a statement last night, Tristor welcomed the judgment and said it hoped to progress the development in conjunction with the council.

Tristor wants to develop the Park Village as a “district centre”, and alleged the Minister’s directions, unless quashed, would cost 1,500 jobs, including 700 jobs in construction of the scheme.

In opposing Tristor’s challenge, the Minister said he issued the directions because the draft development plan 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”, including the 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 application 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, Dún Laoghaire Rathdown County Council and the Attorney General.

In his reserved judgment yesterday, 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 that before making directions, the Minister would have had to reach a sustainable conclusion that the council breached its obligations to agree a development plan which set out an overall strategy.

Alternatively, the Minister 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 because he disagreed with the strategy in the development plan and preferred another, the judge said. Nor did it require the Minister to consider if the strategy proposed was a “proper strategy” but whether it was a strategy for the “proper planning and sustainable development of the area”.