The Supreme Court has dismissed John Conway’s appeal concerning section 28(1C) of the Planning and Development Act 2000 and ministerial planning guidelines on building heights and apartments.
In a judgment delivered on 23 July 2024, Ms Justice Donnelly said she agreed with the Chief Justice and Mr Justice Hogan that the appeal should be dismissed. She also agreed with both judgments on locus standi, and with Mr Justice Hogan that Conway had not shown that the Building Height Guidelines or Apartment Guidelines were outside the powers given by section 28(1C).
The appeal raised whether section 28(1C) was invalid under Articles 28A and 15.2 of the Constitution. Justice Donnelly agreed with Mr Justice Hogan that it was not invalid under either provision. Article 15.2 reserves the Oireachtas’s sole and exclusive power to make laws.
On the requirement to publish the guidelines, Justice Donnelly said all members of the Court were satisfied that their promulgation and publication were essential to their validity and had been satisfied in this case. She considered that the requirement could be grounded in Article 5, which describes Ireland as a democratic state and, in her view, necessarily encompasses the rule of law. She noted that the guidelines were not statutory instruments and did not require publication in Iris Oifigiúil.
Justice Donnelly also agreed with the Chief Justice that democratic accountability was not a separate test for deciding whether section 28(1C) breached Article 15.2. The central question, she said, was whether the Oireachtas had usurped or abdicated its legislative function. The presence or absence of a supervisory mechanism was relevant, but not decisive by itself.
The judgment addressed differences between the other judgments on where the constitutional requirement for publication is located and on democratic accountability. Justice Donnelly said no separate Article 5 argument about democratic accountability had been made in the appeal. Her conclusion was to dismiss the appeal; the judgment does not set out any further order.