Court finds against Gormley in Carrickmines Case

Court finds against Gormley in Carrickmines Case

Postby onq » Thu Nov 11, 2010 10:37 pm

Take note of the text in bold and what the implications might be for aMinister trying to whip local authorities into line to ensure proper planing and sustainable development.



In his reserved judgment today, Mr Justice Clarke ruled the company had established substantial grounds entitling it to judicial review related to the proper interpretation of the Minister's powers under Section 31.1 of the 2000 Act and also relating to some fair procedures arguments. He went on to find Tristor was entitled to succeed on those grounds.

The central issue in the case related to construction of Section 31.1. The judge said that required, before the Minister could make directions, he had to reach a sustainable conclusion the Council breached its obligations to agree a development plan which set out an overall strategy for the proper planning ansd sustainable development of the area. Alternatively, the Miniuster must consider there was a significant failure to comply with some other feature of the 2000 Act.

Section 31 did not entitle the Minister to issue a direction simply because he disagreed with the strategy contained in the development plan and preferred another, the judge said. Nor did it require the Minister to consider the strategy proposed by the Council was a "proper strategy" but whether it was a strategy for the "proper planning and sustainable development of the area".

Many strategies could be adopted which would be consistent with the requirement for an overall strategy for the proper planning and sustaniable development of an area and it was for the Council to decide which of the range of possible strategies was to be included in the development plan. It was not for the Minister to "second guess" the Council.

The Council's plan had set out such an overall strategy and the Minister had not applied the appropriate criteria when he issued his directions, the judge ruled. The directions were therefore invalid and must be quashed.

If the Oireachtas intended to give the Minister the widespread power he claimed, it seemed Section 31 would have been diffferently expressed, the judge said. While there was no reason in principle the Oireachtas should not give the Minister such powers, that was a matter of policy, he added.

The judge also ruled the reasons given by the Minister for not favouring the "district centre" - that it was not in accordance with the Greater Dublin Retail Strtagtegy (DRS) and was likely to exacerbate car based traffic contrary to the Retail Planning Guidelines (RPG) - did not amount to breaches of the 2000 Act entitling the Minister to overturn the District Centre designation.

Neither the DRS nor the RPG had any legal status and, while a local, authority was more than entitled to have regard to them, there was no obligation on any local authority to be bound by them, he said.

If the Oireachtas considered such strategies and guidelines should be binding on local authorities, it should enact enabling legislaiton to give mandatory status to them.

There was nothing to indicate the Council did not have regard to the guidelines in reaching its decision, he added.
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