Supreme Court to examine constitutionality of Minister’s power to issue binding planning directions

The constitutionality of the Minister for Housing’s power to issue binding planning requirements, including one permitting increased building heights in urban areas, will be considered by the Supreme Court.

An environmental activist from Co Louth has appealed to the highest court claiming the section of law enabling the Minister to issue specific planning policy requirements (SPPRs) is repugnant to the Constitution.

John Conway alleges the mandatory requirements, made under section 28(1C) of the 2000 Planning and Development Act, constitute an unconstitutional interference with the role of local Government.

His challenge was dismissed last April by the High Court, which found a “cascade of factors” in favour of concluding section 28(1C) provides for a permissible delegation of power.

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A three-judge Supreme Court panel said the issue is of general public importance warranting further judicial consideration. Ministerial guidelines containing SPPRs play a “significant role in the planning system”, the judges said.

Local planning authorities and An Bord Pleanála must comply with SPPRs, which may take precedence over any conflicting policies or local development plan objectives. They may, in some circumstances, lead to developments securing planning permission despite them materially contravening a local development plan.

The court will also specifically consider the validity of two ministerial guidelines, each of which contain SPPRs: the 2018 Urban Development and Building Heights Guidelines and the 2020 Sustainable Housing Design Standards for New Apartments Guidelines.

The height guidelines provide for increased building height in “appropriate” locations, preventing local authorities from setting inflexible generic limits on buildings and allowing planners to determine heights on a case-by-case basis in accordance with national policy to provide more compact forms of urban development.

Mr Conway’s appeal arises from a decision by An Bord Pleanála to permit the development of 545 build-to-rent apartments on the Naas Road in Walkinstown, Dublin. The proposal materially contravened the Dublin City Development Plan and Naas Road Local Area Plan in relation to height and unit mix, but the board’s inspector cited the SPPRs in the Minister’s height guidelines as the basis for the approval.

That portion of his case relating to the permission was struck out last March on agreement between Mr Conway and the planning board, leaving only the constitutional elements before the court.

Noting Mr Conway, from Dundalk, and the responding State parties requested a priority hearing, the court said the appeal will be heard “as soon as reasonably practicable”.

The Minister for Housing and the Attorney General did not oppose the application for an appeal as they agreed the question of section 28(1C)’s validity is an important one requiring the Supreme Court’s consideration. They did object to Mr Conway’s challenge to the height and apartment guidelines as, they alleged, this was not fully pleaded or argued in the High Court.

The court said there are exceptional circumstances to justify an appeal that bypasses the intermediary Court of Appeal. It is in the public interest that the issue is definitely resolved as soon as possible, the judges said.

The High Court’s Mr Justice Richard Humphreys ruled last April that there were sufficient principles, policies and constraints to significantly limit section 28(1C). The Minister’s powers under the section can only be exercised for the purpose of proper planning and sustainable development, he added.

The judge noted the issue is raised in a “substantial number” of planning challenges pending before the High Court.