Cork County Council v Minister for Local Government and Planning & Ors (Approved)

Factual and Procedural Background

The Applicant sought judicial review of a ministerial direction dated 23rd December 2020, which cancelled Variation No. 2 to the County Development Plan. The High Court previously granted certiorari quashing that direction and adjourned further orders pending supplementary submissions. Following amendments to the statement of grounds and an extension of time, the court addressed consequential relief and related procedural matters. The parties agreed that the ministerial notice dated 5th March 2020 was invalid, which, under the Planning and Development Act 2000, meant that Variation No. 2 would revive unless a stay was granted. The issue of the constitutionality of the 2000 Act was adjourned generally with liberty to re-enter. Costs were agreed on a 50/50 basis between the Applicant and the Respondents and Notice Party, with a stay on costs on usual terms. The only outstanding matter was whether there should be a stay on the declaratory relief, particularly regarding the application of Variation No. 2 in individual planning applications.

Legal Issues Presented

1. Whether a stay should be granted on the declaration that the ministerial notice of 5th March 2020 is invalid, specifically limiting its effect on the consideration of individual planning applications under Variation No. 2.

Arguments of the Parties

Applicant's Arguments

• The Applicant argued for the invalidity of the ministerial notice and for consequential relief, including the revival of Variation No. 2.
• They contended that a stay on the declaration was not appropriate, as the variation was valid and that any planning decisions made under the variation would not prejudice the State’s position.
• The Applicant maintained that the council did not intend to grant individual planning permissions based solely on Variation No. 2, which concerned broad general locations rather than specific areas.
• They submitted that a stay would prejudice the council’s decision-making process but acknowledged that an explicit court stay would protect them in such circumstances.

Respondents' and Notice Party's Arguments

• The State and Notice Party argued for a stay on the declaratory relief to prevent planning permissions being granted under Variation No. 2 before the appeal was resolved, which they feared would render their appeal moot.
• They submitted that granting permissions under an immediately effective Variation No. 2 could undermine the appeal process and that the timing of applications could prejudice their position.
• They did not strongly press for a stay beyond limiting the effect of Variation No. 2 on individual planning applications.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the Okunade test to assess the appropriateness of a stay on the declaratory relief. First, it considered whether the Respondents had an arguable case; the court found their position arguable but weak. Next, it evaluated where the greatest risk of injustice lay, noting that the variation was prima facie valid but so would the ministerial direction have been absent the proceedings, thus this factor was neutral.

The court gave limited weight to the public interest in the orderly operation of the planning scheme, noting uncertainty about the practical impact of Variation No. 2 on planning permissions given its broad nature and the council's stance on not granting permissions solely on that basis. The concern that granting permissions could prejudice the appeal was deemed speculative, with the court noting that planning decisions must be made according to the law at the time of decision, and judicial review remains available to challenge any permissions granted.

The court rejected the submission that a stay implied wrongdoing with the variation, emphasizing the possibility that the Court of Appeal might reach a different conclusion. It found no significant additional public interest factors warranting a stay. The court also considered the availability and adequacy of damages as a remedy irrelevant in this context.

Finally, the court weighed the strength of the parties’ cases, concluding that the Respondents’ case was weak due to multiple independent grounds for rejecting their arguments and the restrictive statutory framework and precedents against them. The court acknowledged that an appellate court might differ but found the likelihood of success on appeal low.

Given these considerations, the court determined that a limited stay was appropriate to preserve the status quo for a defined period to allow the Court of Appeal to consider a stay application if an appeal were filed.

Holding and Implications

The court granted certiorari quashing the ministerial direction of 23rd December 2020 and declared the ministerial notice of 5th March 2020 invalid. The relief concerning the constitutionality of the Planning and Development Act 2000 was adjourned generally with liberty to re-enter. Costs were awarded to the Applicant on a 50/50 basis against the Respondents and Notice Party, with a stay on costs for 28 days and, if an appeal is lodged, until final determination.

A stay was granted on the declaratory relief limited as follows:

• It applies only to the declaration regarding the ministerial notice, not to the quashing of the ministerial direction.
• It is limited in duration to 28 days from the order’s perfection, extendable by a further 28 days if an appeal is lodged.
• It restricts the use of Variation No. 2 only in the context of performing statutory functions related to individual planning applications.
• It does not affect other statutory functions or the treatment of Variation No. 2 as valid for purposes such as preparing the new Development Plan.

The decision preserves the status quo pending appeal and does not establish new precedent beyond the application of established principles to the facts. The direct effect is to revive Variation No. 2 subject to the limited stay, maintaining legal certainty while allowing appellate scrutiny.