The High Court has quashed a requirement by the Minister for Housing, Local Government and Heritage that Cork County Council and Cork City Council coordinate their development plan reviews on retail outlet centres.
In a judgment delivered on 27 May 2022, Mr Justice Humphreys granted the order of certiorari sought by Cork County Council. The order applies to both versions of the Minister’s letter, one sent to each council. The court listed the case for a further mention on 20 June for any consequential orders.
The requirement was made under section 9(7) of the Planning and Development Act 2000. It called on the councils to determine jointly whether Cork had capacity for a retail outlet centre and, if so, its general location, format and scale. The Minister’s letters also provided for submissions and possible ministerial adjudication if the councils did not agree, and contemplated appointing an independent person to assist.
The judge held that coordination in this specific context required agreement between the two councils. He accepted that the statutory power could require them to coordinate their consideration of the issue, but found that it did not allow the Minister to require proposals to be submitted to him or to require the councils to coordinate with an independent person. Nor could a mere lack of agreement be treated as a “dispute” allowing the Minister to intervene: the court said there had to be an active disagreement that one or both councils wanted the Minister to resolve.
The court also found that the Minister had not given the county council advance notice or an opportunity to make submissions before issuing the requirement. Submissions invited after the requirement was made did not cure that fair procedures defect, the judge said, because the letters had immediate legal consequences for the council’s role in making its development plan.
The judgment rejected several other challenges. It found that the requirement did not impose a particular substantive planning outcome, that the separate challenge to a ministerial direction under section 31 did not make the section 9(7) process premature, and that the reasons for the requirement were sufficiently apparent from the letters. The judge also upheld the State’s objections that three arguments—including a challenge to the specified timelines—were outside the pleaded grounds.
The court decided the case on domestic law grounds and did not determine the council’s arguments under the EU Strategic Environmental Assessment Directive. The quashed requirement concerned proposed coordination on retail outlet centres in the councils’ development plans for 2022–2028.