Judgment: 2021-11-18 · Court archive

High Court restores Cork plan variation, with temporary limit on planning applications

The court declared a ministerial notice invalid and set aside related relief on the constitutionality of the planning law. A narrowly defined stay allows time for a possible appeal.

High Court · [2021] IEHC 708

Who, what, where, when and why

Who
  • Cork County Council (Applicant)
  • Minister for Housing, Local Government and Heritage
  • The Office of the Planning Regulator
What

The court declared a ministerial notice invalid and set aside related relief on the constitutionality of the planning law. A narrowly defined stay allows time for a possible appeal.

Where

Places mentioned in the report

  • Cork County
When

Judgment:

Why

Reasons reported in the judgment

The parties agreed that the court should declare invalid the ministerial notice and draft direction dated 5 March 2020. That notice had caused the variation to cease operating under the Planning and Development Act 2000. They also agreed to adjourn generally, with liberty to re-enter, the relief concerning the constitutionality of the Act. Costs were awarded to the council, including reserved costs and the costs of written submissions, with the respondents and notice party liable on a 50/50 basis. The costs order was stayed for 28 days and, if an appeal was brought within that period, until its final determination.

The High Court declared invalid a ministerial notice that had caused Variation No. 2 of the Cork County Development Plan to cease operating, allowing the variation to return to force once the order was perfected. The court temporarily barred the council from taking the variation into account when performing statutory functions on individual planning applications, to allow time for a possible appeal and a stay application to the Court of Appeal.

In a judgment delivered on 18 November 2021, Humphreys J dealt with further orders after an earlier ruling had quashed a ministerial direction dated 23 December 2020. The earlier judgment, in Cork County Council v Minister for Housing, Local Government and Heritage (No. 1), had granted certiorari of that direction and adjourned the question of further relief for submissions.

The parties agreed that the court should declare invalid the ministerial notice and draft direction dated 5 March 2020. That notice had caused the variation to cease operating under the Planning and Development Act 2000. They also agreed to adjourn generally, with liberty to re-enter, the relief concerning the constitutionality of the Act. Costs were awarded to the council, including reserved costs and the costs of written submissions, with the respondents and notice party liable on a 50/50 basis. The costs order was stayed for 28 days and, if an appeal was brought within that period, until its final determination.

The disputed issue was whether the declaration should be stayed. The State and the Office of the Planning Regulator argued that an immediately effective variation could affect a planning permission before an appeal was resolved. The judge considered that concern against the limited time remaining under the existing development plan and the prospect that an appeal might succeed. He said the State and regulator’s prospects appeared limited in light of his earlier decision, while recognising that an appellate court could take a different view.

The stay on the substantive relief is limited to the declaration concerning the 5 March 2020 notice; it does not stay the earlier certiorari of the 23 December direction. For 28 days from perfection of the order—and for a further 28 days if an appeal is lodged within the first period—the council cannot consider Variation No. 2 when carrying out statutory functions relating to individual planning applications. The stay does not alter other statutory timelines or procedures. The variation may be treated as valid and in force for other purposes, including preparation of the 2022 Development Plan.

Read the original court judgment

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