The Supreme Court has dismissed John Conway’s appeal challenging the constitutionality of a ministerial power to issue binding planning guidelines under section 28(1C) of the Planning and Development Act 2000.
The appeal concerned guidelines that planning authorities must consider when carrying out their functions. They can enable a planning decision for a development even where it would otherwise conflict with a local development plan. Conway brought the case against An Bord Pleanála, the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General. Silvermount Limited was named as a notice party.
In a judgment delivered on 23 July 2024, Justice Elizabeth Dunne agreed with the other members of the Court that section 28(1C) was not invalid under the Constitution. She also agreed with the Court’s conclusions on locus standi, an issue raised in the case. The Court dismissed the appeal.
The constitutional challenge argued that allowing the Minister to issue guidelines breached the Oireachtas’s exclusive law-making authority under Article 15.2.1° of the Constitution. Justice Dunne agreed with the reasoning in the judgments of Chief Justice O’Donnell and Justice Hogan that there was no such breach.
Justice Dunne said the guidelines’ binding effect made it essential that they be promulgated and published so those affected could know their content. She considered the main source of that requirement to be Article 25.4.2° of the Constitution, which addresses promulgation of laws. She did not consider Article 5, which describes Ireland as a democratic state, to create a separate test for assessing the validity of legislation.
The judgment noted that the guidelines at issue were subject to statutory measures for publication and had to be laid before each House of the Oireachtas. Justice Dunne said she would have had concerns about their validity if they had not been published. She also agreed that the Minister’s delegated power operated in a limited area and that laying the guidelines before the Oireachtas provided a means of accountability.
The judgment addresses the validity of the statutory power and the guidelines’ publication requirements. It does not identify a particular planning application or make a finding on the merits of any development decision.