The Supreme Court dismissed John Conway’s appeal challenging the constitutionality of section 28(1C) of the Planning and Development Act 2000, in a judgment delivered on 23 July 2024 by Justice Maurice Collins.
Justice Collins agreed with the court’s conclusion that section 28(1C), in its current form derived from the 2018 amendment to the Act, was not invalid under Article 28A of the Constitution. He also agreed that the provision did not amount to an impermissible delegation of legislative power under Article 15.2. The section allows the Minister to issue guidelines containing specific planning policy requirements with which planning authorities and An Bord Pleanála must comply when carrying out their functions.
The judgment records that all members of the Court rejected the Article 15.2 challenge. Justice Collins said the central question in such a case was whether the Oireachtas had abdicated its law-making function. Relevant considerations included the principles and policies in the legislation, the breadth and significance of the rule-making power, and whether the area called for expertise. He said the presence of a formal Oireachtas supervisory mechanism was not, by itself, a prerequisite for a permissible delegation.
The judgment noted that section 28(5) requires ministerial guidelines to be laid before each House of the Oireachtas. Justice Collins also referred to the Minister’s accountability to the Dáil and the Oireachtas’s continuing power to legislate in the area.
Justice Collins separately addressed publication of laws. He agreed with the other judges that publication is essential to a valid law and that the publication requirement was met in this case under section 28(5) to (7) of the 2000 Act. He differed from some colleagues on the constitutional basis for that requirement, concluding that it arose from Article 15.2 rather than Article 5.
He reasoned that the Constitution’s rule-of-law principles require laws made under Article 15.2, including secondary legislation, to be published. Where the Statutory Instruments Act 1947 does not apply, he said Article 15.2, read with Article 25.4, requires sufficient provision for publication. In this case, he said, section 28 made adequate provision.
The judgment is Justice Collins’s separate opinion in the appeal. He agreed with the judgment of Justice Hogan and the dismissal of the appeal, while identifying points of difference about the analysis of delegation and publication.