Constitutional challenge to urban height guidelines dismissed by High Court

The High Court has dismissed a constitutional challenge to binding guidelines relating to urban apartments and development heights and the Government’s power to make these guidelines.

The complaint has been made in many pending challenges to planning permissions for tall buildings and dense residential schemes.

Mr Justice Richard Humphreys ruled on the issue after it arose in a submission made by John Conway in an action challenging permission for 545 apartments at Naas Road, Walkinstown, Dublin.

Mr Conway, an environmental activist from Dundalk, Co Louth, wanted the court to quash An Bord Pleanála’s fast-track approval to developer Silvermount Ltd for the build-to-rent scheme at Concorde Industrial Estate.

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That portion of the action was struck out last month on agreement between the parties, and the constitutional element of Mr Conway’s case proceeded against only the State parties: the Minister for Housing, the Attorney General and Ireland.

In the remaining leg of the case, Mr Conway asked the court to declare that section 28 (1C) of the Planning and Development Act of 2000 is repugnant to the Constitution.

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He also wanted a declaration that the Urban Development and Building Heights Guidelines, of December 2018, and the Design Standards for New Apartments, both made by then-minister for housing Eoghan Murphy under section 28 (1C), are void.

The height guidelines provide for increased building height in “appropriate” locations, preventing local authorities from setting inflexible generic limits on buildings and allowing planners to determine heights on a case-by-case basis in accordance with national policy to provide more compact forms of urban development.

Mr Conway claimed the Minister’s power to make these guidelines, which are mandatory, constituted an “unauthorised delegation of legislative power” and is unconstitutional as an interference with the role of local government.

Ruling on the matter this week, Mr Justice Humphreys said Mr Conway has some indications in his favour, but these are outweighed by the “cascade of factors” favouring the conclusion that this is a permissible delegation of power.

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Among these factors is that the Minister’s powers under section 28 (1C) can only be exercised for the purpose of proper planning and sustainable development, the judge said.

The section, he added, appears wide-facing but there are in fact sufficient principles, policies and constraints to limit it significantly.

He dismissed the proceedings, making no order as to the parties’ costs.

The judge added that if the matter is appealed, which he is “not advocating specifically but merely considering as a hypothetical”, it might be worthwhile for Mr Conway to seek a direct appeal to the Supreme Court, bypassing the Court of Appeal.

That is because that court could bring finality to this issue that could affect a “substantial number” of pending planning challenges before the High Court.