High Court reporters
The way has been further cleared for a Kildare village type retail outlet in east Cork after a High Court decision in favour of Cork County Council.
Mr Justice Richard Humphreys on Friday quashed a Minister’s direction seeking to compel Cork County Council and Cork City Council to coordinate on their development plans.
The judge said the Minister had “pre-emptively involved himself in the process”.
“This is not a process in which the Minister can insert himself,” Mr Justice Humphreys said.
The move is regarded as an important step in seeing the €100 million retail outlet being sited in the Carrigtwohill area of Co Cork. The judgement is also being regarded as significant in relation to future planning.
Cork County Council had gone to court and legally challenged in judicial review proceedings a direction of the Minister for Local Government and Heritage, under a section of the Planning and Development Act 2000, directing Cork County Council and Cork City Council to coordinate ongoing development plan review processes with regard to retail outlet centres.
Cork County Council was represented in the proceedings by Stephen Dodd SC and Damien Keaney BL.
The direction was contained in a letter sent to both councils on April 22nd, 2021.
Mr Justice Humphreys said the Minister’s requirement was the first ever exercise of the statutory power to require coordination.
Referring to the Minister’s letter of April 22nd, 2021, Mr Justice Humphreys said it stated the specific matters that require coordination are consideration of retail outlet centres.
The two local authorities were to jointly determine whether there is capacity and scope for retail outlet centre development in Cork city and county, taking into account the work undertaken to date in respect of the joint retail strategy for the Cork city and county development plans for 2022 to 2028.
The letter stated “a required outcome” would be agreement in respect of the potential provision of retail outlet centre development. It further added in the event that an agreement could not be reached, each authority could make submissions but also the Minister may appoint an independent person to work with the two authorities.
At the end of June 2021 the Minister wrote to the county council indicating that as the two councils had not submitted joint proposals, he intended to determine the matter in accordance with the Planning Act section and intended to appoint an independent retail expert on the matter.
In July 2021 the county council initiated its legal challenge and a stay was granted on the relevant section, Section 9 (7) of the 2000 Act, which states the Minister may require two or more planning authorities to coordinate development plans for their areas generally or in respect of specified matters and any dispute between the planning authorities shall be determined by the Minister.
Last September another High Court judge ruled on an application by the State parties that the stay be lifted.
Mr Justice Humphreys on Friday said the first problem for the State parties is that the Minister’s requirements went beyond merely setting a timeline for the required coordination.
The section, the judge said, is about "requiring councils to cooperate with each other, not breaking outside that relationship to require coordination or cooperation with the Minister or any third party."
Referring to the suggestion of the appointment of an independent person, the judge said it was one thing for the Minister to appoint a person to assist him in relation to his own strategy functions but "it is quite another to impose such a person on councils through the purported mechanism of the section."
The judge added "the Minister doubled down on this erroneous position in the letter of June 21st, 2021."
He said the Minister only comes into the picture if the section is triggered, which requires a dispute.
“The fundamental problem here is that the Minister inserted himself into the process by extending the meaning of dispute to cover mere lack of agreement which it doesn’t,” the judge added.