Irish Environmental Law Association

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1 Irish Environmental Law Association Judgements of the Superior Courts in the period from July 23 rd to November 3 rd 2010 Niall Handy BL Warrenford Properties Ltd & Anor v TJX Ireland Ltd trading as TK Maxx & Anor, Unreported, High Court, Finlay Geoghegan J., July 30, Planning injunction s.160 Planning and Development Act 2000 Alleged Unauthorised Development Exempted Development Retail Planning Guidelines - Discretion to award relief under s.160 Background facts The applicants are the manager, operator and owner of a district shopping centre at Lisduggan, Waterford. The first named respondent, TX Maxx, since 9 th October 2008 occupied and traded from three units at another shopping centre located just outside the town centre zone, Butlerstown, selling discounted fashion goods to the public. The second named respondent is the owner of the Butlerstown retail park. On 22 nd January 2008 Waterford County Council wrote to the respondents to state it was their view that the proposed use was in compliance with (condition 22 of) the parent planning permission for the retail park. On 29 July 2008, Waterford County Council issued a declaration stating that the said use of the properties was exempted development. That decision was appealed and before it was determined, the first named respondent TK Maxx opened for business, however on 23 rd February 2009 An Bord Pleanala upheld the appeal of Waterford County Council s declaration. In its decision the Board concluded that the retail activity carried on by TK Maxx at the properties constituted development, being a material change of use. It further decided that internal alterations to amalgamate the units in question were directly related to the change of use and were therefore not exempted development. The second named respondent (landlord) issued judicial review proceedings seeking certiorari of the decision of the board, which application was refused by McMenamin J. on 22 nd January In or around the same time as the judicial review application was brought, by motion dated 2 nd April 2009 the applicants sought the following orders under s.160 of the Planning and Development Act: (i) An order prohibiting the respondents using the premises located at Unit Nos. 1, 10 and 11 of the Butlerstown Retail Warehouse Park for the sale of goods defined as comparison goods in Annex 1 of the Retail Planning Guidelines. (ii) An order requiring the respondents to operate the retail warehouse premises at Butlerstown Retail Park, Waterford, in accordance with the Planning Permissions granted and, in particular, Planning Permission Register Reference 06/522 which limits the use to that of retail warehouse park. (iii) An order directing the respondents to reinstate the units comprising Units Nos. 1, 10 and 11 as individual units and restore the premises to its existing use prior to the carrying out of the aforesaid works 1

2 The s.160 matter had been admitted to the Commercial List on 28 th May 2009 and adjourned pending the determination of the judicial review of the Boards decision brought by the second named respondent. That judicial review action having failed, the applicants reactivated their s.160 application. Legal argument Both sides referred the court inter alia to the observations of Henchy J. in Morris v Garvey 1 in relation to the discretion given the Court by the relevant section (s.27 of the 1963 Act, the precursor of the current s.160 PDA): When sub-s. 2 of s. 27 is invoked, the High Court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations. In carrying out that function, the court must balance the duty and benefit of the developer under the permission, as granted, against the environmental and ecological rights and amenities of the public, present and future, particularly those closely or immediately affected by the contravention of the permission. It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is necessary to ensure that the development is carried out in conformity with the permission. An order which merely restrains the developer from proceeding with the unpermitted work would not alone fail to achieve that aim but would often make matters worse by producing a partially completed structure which would be offensive to the eye as well as having the effect of devaluing neighbouring property. [Emphasis added] The Court accepted the respondents submissions that these observations were obiter on the facts of Morris v Garvey and stated that subsequent decisions have referred to the wide discretion given the Court by the relevant provision and the need to exercise it on the facts of the individual case. The Court cited McKechnie J. in Leen v Aer Rianta c.p.t. 2 where he had reviewed in depth many of the decisions to date and stated: Finally, on the generality of the discretion point it seems to me that, subsequent to Morris v. Garvey [1983] I.R. 319, the courts have tended to individualise each case and decide it accordingly, rather than to inquire as to whether the resulting circumstances fell within any of the illustrations mentioned in that judgment. For example, in some cases where there was no question of bad faith or lack of candour, injunctions issued, whereas in others relief was refused, even though the facts did not comfortably sit with the exceptions identified by Henchy J. in Morris v. Garvey. Finlay-Geoghan J. agreed with view expressed by McKechnie J. in Leen and opted to exercise the Court s discretion on the individual facts of the case and not solely on the specific grounds as identified by Henchy J. in Morris v Garvey. The court continued: The public interest in securing compliance with the relevant provisions in the planning code and any Planning Permission and the conduct of the parties are nearly always relevant matters to be taken into account and are matters which, on the facts of this application, are to be taken into account. 1 [1983] I.R. 319, at [2003] 4 I.R. 394, at 410 2

3 There is, on the facts herein, a public interest in securing compliance and also a wider public interest by reason of the National Retail Strategy and the retail strategy for the City and County of Waterford. The Court considered the definition in The Retail Planning Guidelines for Planning Authorities (January 2005) of a retail warehouse as a large single-level store specialising in the sale of bulky household goods such as carpets, furniture and electrical goods, bulky DIY items, catering mainly for car borne customers and often in out-of-centre locations. The Retail Planning Guidelines also defined bulky goods and by distinction comparison goods. Crucially, it was the sale of comparison goods by the first named respondent which had been determined by An Bord Pleanála to constitute the material change of use and, hence, development. Decision of the Court Counsel for the respondents accepted that following the refusal of their application for judicial review of the Board s decision by McMenamin J., that the retail store was not compliant with the existing planning permission and the business could not stay open indefinitely. The court found that harm to the town centre of Waterford had been established by the presence of a comparison goods store in an out-of-town location. The court further found that that the description of the goods that may be sold in the letter of January 2008 did not accord fully with the definition of comparison goods as specified in the 2005 Retail Planning Guidelines. Accordingly, the Court indicated at the end of the hearing in June 2010 that it intended to make certain orders, and that any stay would run from 3 rd June The respondents sought a lengthy stay on any orders the Court might make, relying on the responsible manner in which both respondents approached the use of the premises by the first named respondent ; i.e. having first secured a letter from the planning authority in January 2008 and subsequently a declaration of compliance in July 2008, both occurring before the store opened for business in October Furthermore, the first respondent required time to allow the business to secure an alternative suitable location to operate from and also time for an orderly wind down of the business which employed 52 people. Having regard to the damage to the town centre retail trade that had been established and to the refusal of judicial review of the Board s decision, the Court granted the first order sought, prohibiting the respondents using the premises in question for the sale of goods defined as comparison goods in Annex 1 of the Retail Planning Guidelines. A stay until 31 August 2010 was granted to the respondents. The second and third orders gouth were not made as the second flowed automatically from the first, and the court gave the parties liberty to apply for the third order in the event of non-compliance with the first order made prohibiting the sale of comparison goods. The issue of costs has not yet been decided and is due back before the Court in the coming weeks. Of relevance will be the respondent s responsible approach argument and the fact that only one of three orders sought was made, weighed against the applicant s vindicated claim of non-compliance with the planning code and the established damage to retail trade in the town centre. 3

4 Morrison v Dun Laoghaire Rathdown County Council and Kavanagh, Unreported, High Court, Hanna J., October 7 th, 2010 Judicial Review - S50A(3) Planning and Development Act 2000 (as amended) Alleged breach of planning condition - Whether applicant has established substantial interest and substantial grounds Matters to be considered by the Court at leave stage At issue in these proceedings is the question of whether the removal of trees and other works on the property of the notice parties, is in compliance with planning permission granted to them on 24 th August S.,50A(3) of the principal Act states that a court shall not grant leave under s.50 unless it is satisfied that there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed and the applicant has a substantial interest in the matter which is the subject of the application. At this leave stage of the proceedings, the court was concerned only with the question of whether the applicant has established sufficient interest in the matter and demonstrated substantial grounds exist for the court to grant leave to the applicant to seek judicial review. Factual background On September 3 rd, 2009, the respondent planning authority made a decision to accept a compliance submission made by the notice parties in respect of the removal and replacement of a number of trees between the properties, and other works, arising from a condition (No. 5) attached to a decision of An Bord Pleanala dated 24 th August, 2007 for development works at their property. The applicant, a next-door neighbour of the notice parties, sought leave for judicial review of that decision, seeking inter alia the following orders: 1. An order of certiorari quashing the decision of the respondent of 3 rd September 2009 to accept the compliance submission 2. A declaration that the said decision was ultra vires, void and of no legal effect Substantial interest The court accepted that the applicant had established substantial interest in the matter because The court rejected arguments that the application was not made within time, because no affidavit had been sworn by the applicant herself until five months after the proceedings were served. The court accepted that the affidavit of an arborist which grounded the application and was sworn within 8 weeks, was made within time. The court rejected out of hand submissions to the effect that because the applicant had left it until the last day permitted by statute to bring the proceedings and this was reflective of her lack of substantial interest. The court relied on the Supreme Court decision of Harding v Cork County Council 3 where it held that: 3 [2008] 2 I.L.R.M

5 in order to enjoy a substantial interest within the meaning of s.50 of the Act of 2000m, it is necessary for an applicant to establish the following criteria: (a) that he has an interest in the development the subject of the proceedings which is peculiar and personal to him. (b) That the nature and level of his interest is significant and weighty (c) That his interest is affected by or connected with the proposed development On the facts the court found that the applicant had a long history of involvement with the notice parties in relation the development and its proximity to her private dwelling with all that entails, not least in terms privacy and visual amenity. The court found that the applicant s own affidavit, filed long after the original grounding affidavit of her arborist, merely augmented or supplemented that interest. In relation to substantial grounds, the court relied on the classic test in McNamara v An Bord Pleanala 4 by Carroll J.: In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe that I should go no further than satisfy myself that the grounds are substantial. A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it is sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in his arguments at the next stage than those which I believe may have some merit. The court found that the applicant s complaints in relation to an alleged failure to adhere to a condition were not rebutted by the respondent s argument that failure to comply with a pre-commencement condition did not of itself render a development unlawful and is not, of itself, fatal to a decision. The court held that the applicant s complaints were neither trivial nor tenuous and it was not concerned with ascertaining what the eventual outcome would be or whether the applicants arguments about the obligation to comply with precommencement conditions will ultimately be successful. The court held that if the respondent was correct, which it did not accept, that non-compliance with precommencement conditions could never be regarded as good or arguable or weighty, then any challenge made in reliance on such a point could not be substantial. These issues were, in the courts view, a matter for the substantive hearing. The court thus granted the applicant leave and the case proceeds to substantive hearing. Comment It is clear from the above that no novel statement of law arises from the courts decision. However, given the courts early warnings at the outset in respect of the costs of the leave application which warnings were repeated during the six-day hearing, the decision, coming as it did shortly after the enactment of the new planning and development act 2010, is a 4 (No.1) [1995] 2 I.L.R.M

6 timely vindication of the legislature s decision to abolish the requirement that leave applications for judicial review be on notice to the developer / persons affected. Niall Handy, BL 3 rd November,

Irish Environmental Law Association

Irish Environmental Law Association Judgements of the Superior Courts in the period from April 13 th to July 13 th 2010 Niall Handy B.L. Kildare County Council v John Byrne and Maree Byrne, 2009/29CA Judgment