Planning regulator was ‘rattled’ by local authority’s legal action

The planning regulator sought an urgent meeting with the Minister for Housing last year after a local authority took a legal action over the watchdog’s recommended challenge to its development plan.

Niall Cussen, the regulator, told the Minister, Darragh O'Brien, in a previously unpublished letter that he was "very concerned" about the legal action taken by Cork County Council.

It was the first High Court case taken against the Minister over a recommendation by the regulator, whose role is to oversee the development plans of county councils for potential material breaches of legislation or policy.

Cork County Council subsequently won the case over the Minister’s direction, made at the regulator’s advice, that it should annul a change to its development plan which paves the way for a €100 million retail outlet village in the east of the county.

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The matter is still before the courts as the High Court's ruling, which was made by Mr Justice Richard Humphreys last November, is now the subject of an application to the Court of Appeal.

The regulator had argued that the council’s plan for the retail centre was premature and should not have been made before an updated joint retail strategy for the entire Cork metropolitan area was prepared, as required by ministerial retail planning guidelines.

The council's litigation unsettled the regulator, resulting in Mr Cussen writing to Mr O'Brien, Minister of State for Local Government and Planning Peter Burke and the department's secretary general Graham Doyle to see "what, if anything, can be done at this late stage" in relation to the case.

The letter was released to The Irish Times by the Department of Housing under the Freedom of Information Act.

‘Sensitive time’

“As chief executive of the OPR [Office of the Planning Regulator], I am very concerned about the possibility of such proceedings being brought, at a sensitive time, by a public body against presumably you as Minister and the OPR as a body under your aegis,” Mr Cussen wrote.

He told the Minister in his letter of March 3rd, 2021 that the regulator follows a code of practice that states, where there are possible legal disputes with other State bodies, “every effort should be made to mediate, arbitrate or otherwise resolve before expensive legal costs are incurred”.

Mr Cussen told the Minister that he told both local authorities in Cork that the forthcoming development plan processes are the most appropriate context for settling all retail planning policies including retail outlet villages, “rather than a plan that is about to expire”.

Mr Cussen suggested his proposed meeting with the Ministers could discuss restating the code to avoid legal disputes to local authority chief executives.

A spokesman for the regulator told The Irish Times that since its formation in 2019 it had made almost 400 recommendations on local authority plans and that “the vast majority have been implemented, which will lead to better planning outcomes”.