John Conway v An Bord Pleanala, The Minister for Housing, Local Government and Heritage, Ireland, The Attorney General, and Silvermount Ltd (Unapproved)

Factual and Procedural Background

The case is an appeal to the Supreme Court of Ireland brought by the Appellant against the First Respondent (a national planning authority) and several Government Respondents. The Appellant had initiated judicial-review proceedings in the High Court (Record No. 2022 474 JR) challenging ministerial “Building Height Guidelines” and “Apartment Guidelines” issued under s. 28(1C) of the Planning and Development Act 2000. After the High Court rejected the challenge, the Appellant appealed to the Supreme Court pursuant to ss. 50–50B of the Act.

Legal Issues Presented

1. Whether the Appellant possessed locus standi to maintain the challenge.
2. Whether the Building Height Guidelines and Apartment Guidelines were ultra vires s. 28(1C) of the Planning and Development Act 2000.
3. Whether s. 28(1C) is unconstitutional having regard to Article 28A of the Constitution (local-government autonomy).
4. Whether s. 28(1C) is unconstitutional having regard to Article 15.2 of the Constitution (sole and exclusive law-making power of the Oireachtas).
5. The constitutional source of the obligation to promulgate and publish non-statutory normative rules such as ministerial guidelines.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

All five members agreed that the appeal should be dismissed. The Court adopted the following analytical steps:

• Locus standi: The collective judgments of the Chief Justice and Judge Hogan concluded that the Appellant lacked the requisite standing; Judge Donnelly expressly concurred.
• Ultra vires claim: Judge Donnelly agreed with Judge Hogan that the Appellant failed to establish that the Building Height or Apartment Guidelines exceeded the powers conferred by s. 28(1C).
• Article 28A issue: The Court held that s. 28(1C) does not infringe local-government autonomy. Judge Donnelly adopted Judge Hogan’s reasoning in full on this point.
• Article 15.2 issue: Applying the holistic test drawn from NECI, McGrath, and related cases, the Court found no “usurpation” or “abdication” of the Oireachtas’s exclusive legislative power. Democratic accountability was treated as a relevant, but not standalone, criterion.
• Promulgation and publication: All judges agreed that valid guidelines must be publicised. The majority located this requirement in Article 5’s democratic guarantee, while the Chief Justice considered an analogy with Article 25.4.2. Judge Donnelly concluded that either approach leads to the same result: the guidelines were duly promulgated.
• Rule of law considerations: The Court emphasised that democracy and the rule of law are mutually reinforcing; therefore, publication of binding norms is constitutionally mandated.

Holding and Implications

APPEAL DISMISSED.

The High Court’s decision stands, the ministerial guidelines remain valid, and s. 28(1C) of the Planning and Development Act 2000 is confirmed as constitutional. The judgment clarifies that publication of non-statutory normative rules is a constitutional imperative and re-affirms the holistic approach to assessing unconstitutional delegation under Article 15.2. No new cause of action or substantive right was created.