High Court considers constitutionality of SPPR guidelines made under the Planning and Development Act 2000
The recent High Court judgment of Conway v An Bord Pleanala & Ors  IEHC 178 concerned an application challenging the constitutional validity of s.28(1C) of the Planning and Development Act 2000 (the 2000 Act). Specifically, the case queried the legal validity of two sets of planning guidelines, namely the Urban Development and Building Heights Guidelines dated December 2018 (the Heights Guidelines) and the Sustainable Urban Housing: Design Standards for New Apartments (the Apartment Guidelines) made under that section.
S.28(1) of the 2000 Act provides that the Minister may issue guidelines to planning authorities regarding their functions, with s.28(1C) providing that such guidelines may contain specific planning policy requirements (SPPRs) with which planning authorities, regional assemblies and the Board must comply. Both the Apartment Guidelines and the Heights Guidelines contain SPPRs.
The issue arose out of a submission made by the applicant on a planning application for a strategic housing development made under s.4 of the Planning and Development (Housing) and Residential Tenancies Act, 2016. In that application, the notice party (Silvermount Limited) (the Developer)) sought permission for 545 build-to-rent apartments, commercial retail and office units, a childcare facility and associated development on the Naas Road, Walkinstown. The Developer's application contained a material contravention statement identifying a number of material contraventions of the Dublin City Development Plan 2016-2022 and the Naas Road Local Area Plan 2013 in relation to building height and unit mix. The Board's inspector found that there was a material contravention of the relevant plans but recommended granting permission on the basis of certain SPPRs contained in the Heights Guidelines and the Apartment Guidelines.
Planning permission was granted on 21 April 2022 and proceedings were commenced on 7 June 2022. At the second day of hearing on 29 March 2023, the parties agreed that the applicant could proceed with the challenge to the legality of the Guidelines and to the constitutionality of s.28(1C) without involving the Developer or challenging the underlying planning decision.
The applicant sought declarations that s.28(1C) was repugnant to Articles 15.2.1° and 15.2.2° of the Constitution as it constituted an unauthorised delegation of legislative power and/or repugnant to Article 28.1° as it constituted an interference with the role of local government by conferring powers on the Minister to make SPPRs with which the planning authority and Board must comply. The applicant also sought a declaration that the Guidelines and/or such parts of them that contained SPPRs were ultra vires the scope of s. 28(1C) and/or void.
In considering the Guidelines, the Court favoured the term 'secondary law' over the term 'delegated legislation' labelling the latter term 'confusing and ultimately…inappropriate.' The Court recognised that the SPPRs created 'legally enforceable, self-executing, binding obligations on actors to whom they are addressed, with directly legal implications for third parties.'
The Court considered the applicable test for whether powers had been unconstitutionally delegated, commenting that the traditional view as set out by the Supreme Court in Cityview Press v An Chomhairle Oiliúna  I.R.381 was 'no longer determinative' and stated that the more appropriate test was to ask whether "…by reason of the delegation, the parent decision-maker has abdicated its function having regard to all the circumstances, and in particular having regard to
- any principles and policies governing the delegated function,
- the nature of the functions delegated and the issues to which they relate,
- the system of which the delegated function concerned forms part, and
- the safeguards restricting or regulating the exercise of the delegated function."
The Court then proceeded to apply this test to the challenged provisions.
(i) Principles and policies
The Court conceded that s.28 did not itself provide much of a constraint on the power delegated under that section. However, the Court stated that in assessing possible principles and policies regard was to be had to the overall function and purpose of the parent legislation including the long title. As regards the 2000 Act, the Court distilled the key overarching principle and policy of 'proper planning and sustainable development' from the legislation. The Court alluded to the possibility of an environmentally unsustainable decision or the adoption of unsustainable guidelines as being open to challenge on the grounds of breach of this basic limitation on the exercise of powers under the 2000 Act. In addition to the concept of 'proper planning and sustainable development', the Court also recognised a number of other key provisions such as those relating to the National Planning Framework and requirements for Environmental Impact Assessments and for Appropriate Assessments (AA) which it was satisfied constituted very significant principles and policies governing the exercise of the power under s.28(1C) and the 2000 Act generally.
(ii) Nature of functions involved
The Court recognised that given the complex, detailed and technical requirements of planning policy, there was a 'clear objective need' for the requirements to be contained in flexible instruments such as the Guidelines rather than by way of primary legislation.
(iii) The overall system concerned
Under this limb of the test, the Court had regard to the fact that planning policy has long been a delegated function, with the Court also commenting that the vast powers given to local authorities under the 2000 Act made it implausible that a more limited power given to the Minister must be unconstitutional.
(iv) Controls and restrictions
The Court recognised that the level of parliamentary scrutiny of the Guidelines was 'virtually non-existent' and rejected the State's submissions that the laying of guidelines before the Houses of the Oireachtas constituted a form of oversight. The Court commented that that process merely meant that a copy was placed in the Oireachtas Library and stated that this certainly didn't amount to 'inspection, let alone management.' Despite the fact that the level of supervision by the Oireachtas was at 'virtually the most minimal level possible', this was not in itself determinative but was a factor to be considered in relation to the constitutional validity of s.28(1C). The Court did recognise that the fact that s.28 could not be used in respect of individual cases (but rather could only operate at a general level) could be considered as a control or limitation of the section, along with the fact that the Guidelines including SPPRs made thereunder could potentially be subject to Strategic Environmental Assessment and AA.
Ultimately on the application of this test, the Court held that s.28(1C) was a permissible delegation of legislative power and was constitutionally valid. The Court also found that while s.28(1C) was a wide ranging provision, there were sufficient principles, policies and constraints to limit it significantly. The Court also held that both the Heights Guidelines and Apartment Guidelines were legally valid and not ultra vires.
- A new test has been formulated to assess whether a particular delegation of power has been excessive and so unconstitutional. The new test focuses on whether the Oireachtas, or other decision maker, has abdicated its functions. The 'principles and policies test' as outlined by the Supreme Court in Cityview should no longer be regarded as determinative. The assessment of principles and policies does, however, remain as an important factor in the new test.
- In applying this new test, the High Court was satisfied that the delegation of powers under s.28(1C) of the 2000 Act (under which power the Guidelines were issued) was a permissible delegation of power. As a result, the Court also concluded that the Guidelines themselves were not ultra vires and were valid.
- The Court recognised the important concept of 'proper planning and sustainable development' as being a key principle within the 2000 Act and recognised the possibility of guidelines or planning decisions being set aside on the grounds of being in breach of this principle.
- The decision may be appealed.
For more information please contact Alison Fanagan, Consultant and Joint Head of A&L Goodbody's Environmental & Planning Group, Rachel Kemp, Knowledge Lawyer or any member of our Environmental & Planning Group.
Date published: 9 May 2023