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

This opinion concerns an application pursuant to sections 50, 50A, and 50B of the Planning and Development Act 2000. The Appellant challenged the validity of section 28(1C) of the Planning and Development Act 2000, as amended by the Planning and Development (Amendment) Act 2018, on constitutional grounds. The case reached the Supreme Court, where the appeal was considered and ultimately dismissed.

Legal Issues Presented

1. Whether section 28(1C) of the Planning and Development Act 2000 is invalid under Article 28A of the Constitution.
2. Whether the conferral of power on the Minister for the Environment to issue specific planning policy guidelines constitutes an impermissible delegation of legislative power in breach of Article 15.2 of the Constitution.
3. Whether there is a constitutional requirement for the publication of laws made pursuant to Article 15.2, including secondary legislation.

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

The Court unanimously dismissed the appeal, agreeing with the analysis of the leading judgment by Judge Hogan. The Court held that section 28(1C) of the Planning and Development Act 2000 is not invalid under Article 28A of the Constitution.

Regarding the challenge based on Article 15.2 of the Constitution, the Court reasoned that the critical question is whether the Oireachtas has abdicated its law-making function. Factors such as the presence of principles and policies in the parent legislation, the scope of the delegated power, and the existence of supervisory mechanisms are relevant but not determinative tests.

The Court rejected the notion of a separate democratic accountability test, emphasizing that the Oireachtas's retention of competence to legislate and formal mechanisms such as statutory laying of guidelines before the Houses satisfy constitutional requirements.

The Court further elaborated on the constitutional requirement for publication of laws, including secondary legislation made pursuant to Article 15.2. It emphasized that accessibility of law is a fundamental requirement of the rule of law, necessary to ensure legal certainty and the proper administration of justice. This principle is reflected in constitutional provisions (such as Articles 38.1 and 40.4) and reinforced by the jurisprudence of the European Court of Human Rights.

The Court clarified that Article 25.4 of the Constitution, which deals with promulgation of laws, is not exhaustive of the publication requirements; promulgation is a minimal step, and the content of laws must also be made generally accessible. The publication requirement for secondary legislation varies according to its scope and affected population but must be sufficient to inform those impacted.

Ultimately, the Court concluded that section 28(1C) is constitutionally valid and the publication requirements under section 28 of the 2000 Act satisfy the constitutional mandate.

Holding and Implications

The Court's final decision was to DISMISS THE APPEAL.

The direct effect of this decision is to uphold the constitutionality of section 28(1C) of the Planning and Development Act 2000, confirming that the Minister's power to issue specific planning policy guidelines is a permissible delegation of legislative authority under Article 15.2 of the Constitution. The ruling affirms the constitutional principles governing the publication and accessibility of laws, including secondary legislation, reinforcing the integral role of accessibility in the rule of law. No new precedent beyond the application of existing constitutional principles was established.