About this case:

• Citation:
  [2024] IESC 34
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

Delivering the lead judgment for the Supreme Court, Mr Justice Gerard Hogan concluded that s.28(1C) does not amount to an unconstitutional delegation of legislative power contrary to Article 15.2.1⁰ of the Constitution and, furthermore, does not offend the principles of democratic accountability in respect of local government contained in Article 28A.

Background

In the High Court, the applicant unsuccessfully challenged the validity of a grant of planning permission by An Bord Pleanála for a Strategic Housing Development (SHD) comprising inter alia 545 build-to-rent apartments in Walkinstown in favour of Silvermount Ltd.

The Board had considered that a grant of permission would materially contravene the Local Area Plan in relation to building heights, residential density and unit numbers and would breach the Dublin City Development Plan 2016-2022, but granted permission nonetheless by reference to the recommendations of its inspector that the proposal was in compliance with Specific Planning Policy Requirements (SPPRs) issued by the minister for housing.

The applicant brought a leapfrog appeal challenging the constitutionality of s.28(1C) of the 2000 Act which allows the minister to make guidelines containing SPPRs, enabling planning authorities and the Board to depart from local development plans.

The applicant contended that the legislation infringed Article 15.2.1⁰ of the Constitution by giving the minister a legislative power, and infringed Article 28A as it effectively enabled the minister to override local government decisions taken democratically.

The Supreme Court

Ultra vires

Having deemed the applicant to have the requisite standing and having set out the relevant legislative provisions and the judgment of the High Court, the Supreme Court moved to consider whether the SPPRs were ultra vires the minister.

Repeating the view of the High Court that the applicant had not pointed to anything breaching the principle of proper planning or sustainable development, Mr Justice Hogan observed that on appeal the applicant had likewise failed to point to anything in the SPPRs which could be said to be ultra vires, and proceeded to the constitutional issue on the assumption that the SPPRs were not ultra vires.

Constitutionality of s.28(1C)

Mr Justice Hogan opined that recent jurisprudence on the improper delegation of legislative power has somewhat moved away from the ‘principles and policies test’ in City View Press Ltd. v. An Chomhairle Oiliúna [1980] IR 381 to a more “holistic, broader-based consideration” illustrated in cases such as Bederev v. Ireland [2016] IESC 34, [2016] 3 IR 1 and Náisiúnta Leictreach Contraitheroir Éireann v. Labour Court [2021] IESC 36, [2022] 3 IR 515.

The judge set out the seven non-exhaustive requirements of Article 15.2.1 enunciated in Náisiúnta Leictreach, being an assessment of the provisions of the Act to determine whether or not it contains sufficient principles and policies, to ask whether the legislation sets boundaries or guidelines, to determine whether the legislation has defined subject matter and contains basic conditions of fact and law, and to ask whether the delegated power is sufficiently delimited, whether its exercise contains sufficient safeguards and whether there the Oireachtas has abdicated its constitutional role.

Applying those principles, Mr Justice Hogan determined that the minister was not at large in exercising the s.28(1C) powers: “The guidelines must relate exclusively to planning policy and the performance of the functions conferred on local authorities and the Board. The powers must furthermore be exercised within the four corners of the 2000 Act, and it follows by extension that any guidelines must further relate to proper planning and sustainable development: see s. 34(2)(a) of the 2000 Act.”

The court also pointed out the views of Mr Justice Humphreys in the High Court, that “Section 28(1C) does not allow the Minister to amend other law… Nor does this provision seeks to create criminal offences or regulate or impact on aspects of private law. The guidelines likewise do not impact on fundamental rights.”

Finding that. 28(1C) sets definite boundaries, enjoys a defined subject matter and has a discernible legislative purpose of enabling the minister to set national standards in relation to a range of highly technical and sometimes fluid planning considerations bearing on matters such as urban density, transport connectivity, the avoidance of urban sprawl and building heights, Mr Justice Hogan decided that it could not be said that the minister was empowered to make policy choices of a type normally regarded as the hallmark of a legislative power.

Commenting that the matters the subject of regulation by guidelines are ones for “technocratic expertise”, the judge stated: “If the Minister were ever to make guidelines which materially went beyond the setting of technical standards and strayed into major policy questions, this would immediately raise issues as to the vires of any such guidelines.”

Finding that the first six Náisiúnta Leictreach standards had been met, the court proceeded to consider whether the Oireachtas had abandoned its constitutional role by reference to democratic accountability and publicity.

Mr Justice Hogan noted that the democratic character of the State provided for by Article 5 of the Constitution requires that at least basic publication requirements must be provided for in the case of guidelines with binding normative qualities in respect of third parties such as the s. 28(1C) guidelines.

Finding the publication and accountability requirements to be satisfied by s.28 of the 2000 Act, the judge observed that s.28(5) requires both ordinary and binding guidelines to be laid before the Oireachtas, s.28(6) requires planning authorities to make any guidelines issued to them available for inspection by the public, and s.28(7) requires that the minister “shall publish or cause to be published, in such manner as he or she considers appropriate, guidelines issued under this section.”

Article 28A

Mr Justice Hogan explained that Article 28A.1 implies that certain definite powers which might appropriately be exercised at local government will be conferred on such bodies by law, and so the Oireachtas could not empty Article 28A.1 of any real meaning by declining to grant local authorities any real or substantial powers whatsoever.

Considering that s.28(1C) is designed to enable the minister to issue binding guidelines and directions to planning authorities, the judge opined that s. 28(1C) is in reality another form of central government control in respect of the planning process.

Being unpersuaded that such a provision infringes Article 28A.1, the Supreme Court continued:

Mr Justice Hogan concluded:

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

John Conway v An Bord Pleanála & Ors [2024] IESC 34