The High Court has quashed a ministerial direction that cancelled a Cork County Council development plan variation concerning a possible retail outlet centre, finding four independent legal flaws in the process leading to the direction.
In a judgment delivered on 5 November 2021, Humphreys J. granted certiorari of the Minister’s final direction of 23 December 2020. The judge adjourned all other relief, including any consequential orders, for further submissions. The ruling did not decide the council’s constitutional challenge or the other alleged errors in the later stages of the process.
The variation, adopted by the council’s elected members in January 2020, identified capacity for a retail outlet centre in the Cork Metropolitan Area and proposed the N25 sub-catchment as the preferred general area. It did not identify a specific site. The Office of the Planning Regulator (OPR) recommended that the Minister issue a direction, and the Minister’s direction meant the variation ceased to have effect.
The court held that the OPR and Minister wrongly treated an updated joint retail strategy as legally required by the 2012 Retail Planning Guidelines. The guidelines required the council to have regard to them, the judge said, but did not make the strategy mandatory. The council had considered the guidelines, and the court found no basis for treating their language as creating a binding duty.
The judge also found that the decision-makers wrongly reasoned that the variation’s supposed inconsistency with the guidelines meant the development plan lacked an overall strategy. A disagreement over planning merits, or departure from non-binding guidance, did not establish that statutory failure, the judgment said.
A further flaw was that the OPR’s approach relied in substance on the absence of a strategy for the wider Cork Metropolitan Area, rather than asking whether the county development plan set out an overall strategy for the county council’s own functional area. The court also found an irrelevant statutory provision had been cited in connection with guidelines that contained no specific planning policy requirements.
Each flaw independently supported certiorari, the judge concluded. Because the final direction depended on a valid OPR proposal, the invalidity of that prerequisite meant the direction had to fall. The court made no order at this stage on the remaining reliefs, leaving them for later submissions.