Corajio Unlimited Company Trading as Mr. Price Branded Bargains v an Bord Pleanála
|Ms. Justice Siohbán Phelan
|29 June 2023
| IEHC 373
|[Record No. 2021/308 JR]
 IEHC 373
[Record No. 2021/308 JR]
THE HIGH COURT
JUDGMENT of Ms. Justice Siohbán Phelan, delivered on the 29 th day of June, 2023
. These proceedings concern the change of use of a car sales store to a Mr. Price retail store without planning permission and in reliance on an exemption provided under the Planning and Development Act, 2000 [hereinafter “the 2000 Act”] and, specifically, the Planning and Development Regulations, 2001 (hereinafter “the 2001 Regulations”), namely an exemption under Class 14(a) of Part One of Schedule Two of the 2001 Regulations which exempts development consisting of a change of use from the sale or leasing of motor vehicles to use as a shop. The exemption is claimed in circumstances where the premises was not constructed in accordance with the plans and documentation submitted at planning application stage notwithstanding that it was a condition of planning permission that the premises would be so constructed. The most fundamental question which now arises is whether non-compliance with a condition in relation to the construction of the premises results in the disapplication of an exemption which might otherwise be available in respect of the change of use of the premises as constructed.
. By Order dated the 25 th of August, 2004 Athy Town Council [hereinafter “the Planning Authority”] granted planning permission for a car sales showroom including car repairs, parts store, staff canteen, toilets and administration area and all ancillary site development works to include surfaced area for the display of cards around the proposed building at Gallowshill, Athy, County Kildare. The grant of permission was subject to 34 conditions, the first of which was:
“the proposed development shall be retained carried out and completed in accordance with the drawings and documentation submitted to the Planning Authority on 10/12/2003, 10/03/2004 and 19/05/2004, except where altered or amended by conditions in this permission.”
. Of note, there was no condition restricting the use of the premises to car sales. The premises constructed on foot of this planning permission is the premises the subject of these proceedings. The premises as constructed is symmetrical in shape, in contrast with the premises for which permission was granted. Accordingly, the first condition of the planning was not adhered to and the premises was not developed in accordance with the drawings and documentation which had been submitted to the Planning Authority.
. The premises was used as a car sales showroom up until the business closed in 2013. The premises is now owned by Supermacs, the Second Notice Party. The Applicant, hereinafter referred to as Mr. Price for ease of reference, is the tenant of the premises first entering into occupation sometime in or about 2016. Mr. Price now carries on the business of a shop from the premises, selling both convenience and lower order comparison goods. On the 3 rd of February, 2016 a section 5 declaration was sought from the Planning Authority by a planning consultant on behalf of Mr. Price, then the intended lessee, in respect of the property. The question asked in the referral was:
“whether the change of use from the former car garage to use as a retail shop, is development, and or is not exempted development all”
. By order dated 24 th of May 2016 the Planning Authority decided the use of the former garage for use as a shop is development and is not exempted development. The Planning Authority considered that:
“the development carried out on foot of register reference 03/300074 is not in compliance with conditions 2, 4 and 32 of the planning permission, and is therefore on authorised development the restrictions on exemptions in article 9 (viii) of the Planning and Development regulations 2001 to 2015 refer.”
. By letter dated the 27 th of May, 2016 the planning consultant on behalf of Mr. Price referred the declaration issued by the Planning Authority to the Respondent [“hereinafter “the Board”] for review pursuant to s. 5(3) of the 2000 Act. By letter dated the 2 nd of February, 2017, the Board notified the planning consultant that it proposed to take into account the fact that the building, as constructed, might not conform to the permission granted having regard to 3 specified aspects:
“a) The asymmetrical shape of the building permitted under planning authority register reference number P03/300074, and the more symmetrical shape of the building as constructed, and
b) The size of the permitted building, stated to be 588 m 2 in gross internal floor area, and the size of the building as constructed, stated to be 609 m 2 in gross retail floor area,
c) Photographs on file and publicly available aerial photography.”
. By letter dated the 8 th of February, 2017 the planning consultant responded to the issues raised by the Board in its letter of the 2 nd of February, 2017. The response noted that:
(i) the structure as built was substantially in compliance with the grant of permission;
(ii) the size of the structure is marginally bigger, representing a 3% increase approximately, than the permitted structure; and
(iii) the size and symmetry of the building was not disputed but on balance it was considered that the structure was substantially compliant with the grant of permission.
. Two inspector's reports were prepared in respect of the referral.
. The first inspector's report dated the 5 th of December, 2016 concluded that the change of use was development and was exempted development. This report was prepared before the Board advised that it proposed to take into account that the building, as constructed, might not conform to the permission granted and sought submissions from Mr. Price in this regard. The second report dated the 10 th of August, 2017 addressed the issue of whether any deviation of the building as constructed from the terms of the permission would be exempt or whether what would otherwise be an exempted change of use, lost the benefit of exemption because of the breach of condition. The inspector's second report concluded that the change of use was development and was not exempted development by virtue of Article 9(1)(a)(i) of the 2001 Regulations in that the property had been constructed otherwise than in accordance with the permission and that this was a breach of condition 1 of the grant of permission.
. It warrants mention that Mr. Price commenced trading from the premises before the planning status of the premises was regularised and have been operating from the premises without permission for several years in reliance on a claimed exemption under the 2001 Regulations.
. By Order dated the 19 th of January, 2018, the Board determined that the proposed change of use of the former car sale's premises to use as a shop in Gallowshill, Athy, County Kildare is development and is not exempted development (the 2018 Declaration). The Board accepted that the proposed change of use “generally come within the scope of Class 14(a) of Part One of Schedule Two of the 2001 Regs” but considered that the exemption would not apply by reason of Article 9(1)(a)(i) of the 2001 Regulations as the property, as built, differs to the grant of permission and the changes are material in nature and as such there had not been compliance with condition 1 of the grant of permission. It is noteworthy that this decision was not challenged at that time even though the Board found that the exemption in Class 14(a) of Part 1 of Schedule 2 was de-exempted by Article 9(1)(a)(i) where condition 1 of the 2004 permission had been contravened because the premises built was not the premises permitted.
. On the 15 th of May, 2018 the Council served a warning letter on Mr. Price in respect of the property and invited submissions on same. In particular, the warning letter alleged that:
“the conversion and change of use of a car sales showroom, car repairs, parts store, staff canteen, toilets and administration area and all ancillary site development works, including hard surfaced area for the display of cards around the building as permitted under PL Ref. 003/300074 to Mr Price discount retail store supplying household products, toiletries, stationery, toys etc is not exempted development. The car repairs use of the development, as specified under PL Ref. 03/3(74) is not ancillary/incidental to the car sales showroom and its conversion to a shop is not identified as exempted development under the Planning and Development Regulations (as amended). The additional requirements to facilitate the change of use, e.g. signage, car parking etc is also not deemed exempt.”
. By letter dated the 12 th of June, 2018, Mr. Price disputed the position adopted by the Planning Authority, save in respect of signage. The Planning Authority responded by letter dated the 3 rd of July, 2018 in which they advised that a section 5 referral could be submitted to ascertain whether the change of use was exempted development. On foot of this letter from the Planning Authority, in a letter dated the 29 th of August, 2018, Mr. Price sought a further section 5 declaration from the Authority as to whether:
“1. The change of use of the premises from use for the sale are leasing or display for sale or leasing of motor vehicles (Class 14(a) to use as a shop is/is not exempted development, and
2. Whether the internal words are/are not exempted development.”
. The letter of the 29 th of August, 2018 making the second referral identified some changes in the property that had occurred since the earlier 2016 Declaration in which it had been found that...
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...(approximately 10 months) when the ex parte application was made in the High Court: see Corajio Unlimited Company v An Bord Pleanála  IEHC 373 at paragraph 46 per Phelan 42 The lodgment or filing of papers in the Central Office does not, however, stop time running. 43 As mentioned ear......