Dunnes Stores (Limerick) Ltd v Limerick City and County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 18 January 2019
• Neutral Citation: [2019] IEHC 59
• Docket Number: 2018 No. 633 JR
• Court: High Court
• Date: 18 January 2019

[2019] IEHC 59

THE HIGH COURT

JUDICIAL REVIEW

Ní Raifeartaigh J.

2018 No. 633 JR

IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

Between

DUNNES STORES (LIMERICK) LIMITED

AND

DUNNES STORES UNLIMITED COMPANY

Applicants

-And-

LIMERICK CITY

AND

COUNTY COUNCIL

Respondent

Stay on an appeal – Judicial review – Priority in time – Applicants seeking a stay on an appeal pending the determination of judicial review proceedings – Whether the judicial review should take priority in time over the appeal

Facts: The applicants, Dunnes Stores (Limerick) Ltd and Dunnes Stores Unlimited Company, in judicial review proceedings, sought: (i) an order quashing a decision of the respondent, Limerick City and County Council, to enter a certain property owned by them on to the Vacant Sites Register pursuant to s. 6 of the Urban Regeneration and Housing Act 2015; and (ii) various related declarations to the effect that the decision to do so was ultra vires, void, of no legal effect, unreasonable and irrational, in breach of fair procedures, natural and constitutional justice, and that the Council had failed to give adequate reasons for its action. Further, the applicants sought a declaration that the decision was unlawful on the basis that it was made in bad faith for an ulterior and/or improper purpose, namely of acquiring the property for the purpose of developing a civic and cultural amenity centre according to the Council’s economic and spatial strategy incorporated into the Limerick City Development Plan 2010-2016. The applicants brought a motion for a stay on an appeal before An Bord Pleanála pending the determination of the judicial review proceedings. The first applicant was the appellant in the appeal to the Board. The application for a stay was opposed by the Council. It was submitted on behalf of the applicants that the judicial review should take priority in time over the appeal because there had been two procedural deficiencies at first instance which would render an appeal incapable of being fairly determined, as well as a third issue (bad faith on the part of the Council) which could only be determined by the High Court and did not (because it could not) fall within the scope of the appeal to the Board. The two procedural deficiencies were said to be (1) inadequate notice (in that the second applicant had never been served with the notice) and (2) a failure to give adequate reasons for its decision. It was submitted on behalf of the Council that the appeal before the Board should proceed first in line because it was a comprehensive appeal and that matters such as whether the property fell within the relevant definitions of the legislation was pre-eminently suited to the expertise of the Board. It was submitted that if the applicants were successful on appeal, there would be no need for the judicial review to proceed at all.

Held by the High Court (Ní Raifeartaigh J) that it did not see any prejudice to the Council by allowing the judicial review to proceed first in time, and if the applicants were ultimately unsuccessful, the levy under the vacant sites legislation could, as the court understood the legislation, be backdated. Ní Raifeartaigh J found that the Board had the expertise particularly appropriate to determining the merits of the substantive planning issues arising on the appeal, but the bad faith allegation and the notice point did not fall within those parameters and were matters which could only be determined by way of judicial review.

Ní Raifeartaigh J held that she would make an order granting the stay in this motion.

Stay granted.

Judgment of Ms. Justice Ní Raifeartaigh delivered on the 18th Day of January, 2019

Nature of the Case

1 This is a ruling on a motion by the applicants for a stay on an appeal currently before An Bord Pleanála pending the determination of these judicial review proceedings. The first applicant is the appellant in the appeal to the Board. The application for a stay is opposed by the respondent Council. The Board is neutral as to whether or not a stay is granted.

The substantive Judicial Review proceedings

2 In the substantive judicial review proceedings, the applicants are seeking (i) an order quashing a decision of the Council to enter a certain property owned by them on to the Vacant Sites Register pursuant to s. 6 of the Urban Regeneration and Housing Act 2015, and (ii) various related declarations to the effect that the decision to do so was ultra vires, void, of no legal effect, unreasonable and irrational, in breach of fair procedures, natural and constitutional justice, and that the Council had failed to give adequate reasons for its action. Further, the applicants seek a declaration that the decision was unlawful on the basis that it was made in bad faith for an ulterior and/or improper purpose, namely of acquiring the property for the purpose of developing a civic and cultural amenity centre according to the Council's economic and spatial strategy incorporated into the Limerick City Development Plan 2010-2016.

3 I note that the applicant was granted leave to bring the judicial proceedings on the 30th July, 2018 and that the test for obtaining leave was the ‘substantial grounds’ test applicable to planning cases.

4. Chronology of Events

5 The applicants are the owners of a site located at Sarsfield Street in Limerick City. Each respective applicant owns a different part of the site. In 2008, they closed a shopping centre which had been open for business on the site. They continued to maintain the property and tend to its upkeep.

6 In 2010 the property was subsequently zoned under the Limerick City Development Plan 2010 ‘to provide for the protection, upgrading and expansion of high order retailing, in particular comparison retailing, and a range of other supporting uses in the City Centre retail area.’ This development plan and the zoning of the site remained in force following a decision of the Council which was taken in September 2014 pursuant to Section 28 of the Electoral, Local Government and Planning and Development Act 2013.

Notices under the Derelict Sites Act, 1990

7 By letters dated the 28th March, 2013, the Respondent council served notices pursuant to s. 29 of the Derelict Sites Act 1990 (hereinafter ‘the Act of 1990’) on two directors of the applicants, Mr. Francis Dunne and Ms. Margaret Heffernan, but not on the applicant entities themselves.

8 On the 17th April, 2013 the respondent proceeded to serve further notices, pursuant to s. 8(2) of the Act of 1990, of their intention to enter the site onto the Derelict Sites Register. Again, these notices were served on the directors and not on the applicant entities themselves.

9 On the 24th April, 2013 the applicants” solicitor responded in some detail, stating the correspondence had been passed on from the addressee-directors to the entities. This response requested that the Council provide information on a wide variety of matters. The response went on to complain about the fact that the addressee-directors, who possessed no legal interest or estate in the properties, were contacted under threat of penal and criminal sanction, and it asserted that the applicants had suffered reputational damage through a determination of dereliction of which they had no notice. It was suggested that the notice period given was contrary to the requirements of the Act of 1990. It was further suggested that it appeared that the Council was independently preparing plans and developing proposals in respect of the properties which has not been referred to in the notices or the correspondence. The letter concluded with a series of demands for undertakings as to the site and acknowledgement of error on the Council's part within 7 days of the letter, and that failure to comply would lead to the issuing of proceedings in order to quash the notices.

10 On the 17th May, 2013, the Council replied, indicating that they were withdrawing the previous notices and that ‘new notices are being issued to the Company at its registered address and to the secretary of the Company at its registered address’. On the 16th May, 2013 this fresh notice was served on the first named applicant in respect of the property, together with a request for particulars relating to the applicants” interests in the property within 21 days.

11 On the 6th June, 2013, the applicants” solicitors wrote again, taking issue with several aspects of the notice. On the 26th July, 2013, they wrote again and said that the property was not derelict, and attached photographs of the property in order to demonstrate this fact.

12 It seems that this correspondence in 2013 thereby came to an end and that the site was not in fact placed on the register of derelict sites.

Council plans in respect of the property

13 In 2013, a non-statutory plan - the Limerick 2030 Economic and Spatial Plan for Limerick - was promulgated by the respondent council and advertised publicly. The plan discussed, among other things, the potential development of the applicants” site into a civic and cultural centre for Limerick City.

14 On the 26th January, 2015 the elected members of the respondent adopted Variation No. 4 to the Development Plan to include elements of the 2030 Economic and Spatial Plan for Limerick, incorporating the proposed redevelopment of the applicants” site.

The attempted compulsory purchase of the site

15 On the 30th September, 2015, an administrative officer of the respondent, Mr. James Clune, telephoned one of the applicants” employees in relation to a proposed compulsory purchase by the respondent of the lands surrounding the property.

16 In subsequent emails on the 1st October, 2015, as well as on the 20th April, 2017, the 14th June, 2017, and the 19th June, 2017, Mr. Clune stated that the object of any purchase by the Council of the property was for the...