The High Court has dismissed a challenge to the constitutionality of the Minister’s power to issue binding planning requirements, holding that section 28(1C) of the Planning and Development Act 2000 did not unlawfully delegate legislative power.
In a judgment delivered on 18 April 2023, Mr Justice Humphreys rejected the arguments brought by John Conway 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.
The case arose from Silvermount’s 2021 application for permission to build 545 build-to-rent apartments, commercial units and a childcare facility at Concord Industrial Estate, Naas Road, Walkinstown, Dublin 12. The board granted permission in April 2022 despite identified conflicts with the Dublin City Development Plan and Naas Road Local Area Plan, relying on ministerial planning requirements concerning building heights and apartment standards.
Conway initially sought to quash the board’s decision as well as challenge the legislation and two sets of ministerial guidelines. During the hearing, the parties agreed that he could proceed with the challenge to the legislation and guidelines without seeking to affect Silvermount’s permission. The claim to quash the board’s decision was struck out, and Silvermount was excused from further participation. The court noted that any declaration against the State would not affect the permission.
Conway argued that the law gave the Minister excessive power and improperly displaced the roles of the Oireachtas and local authorities. The judge said the binding requirements were a form of secondary law, rather than merely advisory guidance. He assessed whether the Oireachtas had abdicated its function, considering the statutory principles, the technical and changing nature of planning, the wider planning system and the safeguards on the Minister’s power.
The judge concluded that the power was sufficiently constrained, including by the requirement to support proper planning and sustainable development and, in relation to individual applications, to support consistent application of government or national policy. He also found that the applicant had not established that the challenged guidelines exceeded those limits. A separate argument concerning planning schemes did not arise because the development was not governed by one.
The court dismissed the proceedings. Unless submissions to the contrary were made within seven days, the order was to be perfected with no order as to costs. The judgment did not invalidate the planning permission.