Dunnes Stores v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 04 May 2016
• Neutral Citation: [2016] IEHC 226
• Date: 04 May 2016
• Court: High Court
• Docket Number: [2014 No. 685 J.R.] [2014 No. 179 COM.]

[2016] IEHC 226

THE HIGH COURT

JUDICIAL REVIEW

Hedigan J.

[2014 No. 685 J.R.]

[2014 No. 179 COM.]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000

AND IN THE MATTER OF AN APPLICATION

BETWEEN

DUNNES STORES

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

INDEGO

FIRST NAMED NOTICE PARTY

AND

SOUTH DUBLIN COUNTY COUNCIL

SECOND NAMED NOTICE PARTY

Local government – The Planning and Development Act 2000 – Art. 94 of the Planning and Development Regulations 2001 – Environmental impact statement – Imposition of conditions

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for granting planning permission to the first named notice party for the phased construction of two independent extensions to the existing shopping centre, thereby affirming the decision of the second named notice party subject to the fulfilment of certain conditions. The applicant contended that the Environmental Impact Statement (EIS) submitted by the first named notice party was in contravention of art. 94 of the Planning and Development Regulations 2001 as the first named notice party had not provided information pertaining to likely significant environment effects of proposed project, mitigation measures and land use requirements. The applicant also alleged that the respondent had failed to carry out an EIA as envisaged under s. 172 of the Planning and Development Act 2000. The respondent submitted that it had carried out the full Environment Impact Assessment (EIA) and that relevant conditions were imposed keeping in lieu the complexity of the proposed development.

Mr. Justice Hedigan refused to grant the desired reliefs to the applicant. The Court held that it should refrain from interfering with the decision of an administrative body unless there was an identifiable error of law or an unsustainable finding of fact. The Court opined that the respondent/Board had been vested with wide jurisdiction to determine the adequacy of EIA and it had discretion either to ask for more information or rely on its own expertise to fill the gap and thus, the Court would not intervene unless there was any concrete basis to do so. The Court found that once the Board had stated its decision coupled with the relevant documents from which the basis for its conclusions could be inferred, the Board had no obligation to give detailed reasons for coming to the said conclusions. The Court, in consonance with the test laid down by the Supreme Court in Boland v. An Bord Pleanala [1996] 3 I.R. 435, held that the Board had discretion to impose a condition to the effect of leaving a matter to be decided by agreement between the parties, thereby allowing a degree of flexibility to a proposed complex enterprise.

JUDGMENT of Mr. Justice Hedigan delivered on the 4th day of May, 2016.

1 INTRODUCTION

1.1 The present proceedings are a judicial review of a determination of An Bord Pleanála (‘the Board’) pursuant to s. 50 and 50A of the Planning and Development Act 2000, as amended (‘the Act of 2000’). By order of 18th November, 2014, Noonan J. granted leave to the applicant to apply for judicial review for the following reliefs:

‘1. An Order of Certiorari quashing the decision of the Respondent to grant planning permission in respect of the phased construction of two independent extensions (north and south) to the existing shopping centre (The Square) with a total gross floor area of 21, 490 sq. m. (including floor area of car-parking of 22,861 sq. m.; the total development area being 44, 351 sq. m.. The proposed development involves an extension to the existing shopping centre to the north (plot A) and to the south (plot B) which decision was made under Planning Application Register Reference SD13A\0192 An Bord Pleanála reference PL PL06S.243280 on the 23rd day of September, 2014;

2. A Declaration that in making the decision the Respondent failed to carry out an Environmental Impact Assessment (EIA) in accordance with the requirements of Section 172 of the Planning and Development Act, 2000, as amended, as interpreted in accordance with the obligations imposed under Article 3 of Council Directive 85\33\EEC, as amended by Council Directive 97\11\EC and 2003\55\EU and as codified by Council Directive 2011\92\EU;

3. A declaration that the Environmental Impact Statement (EIS) submitted by the first named Notice Party (together with the further information submitted by it in relation to the planning application) failed to comply with the requirements of Article 94 and Schedule 6 of the Planning and Development Regulations 2001 (‘the 2001 Regulations’);

4. A declaration that conditions 2, 3 and 6 of the Respondent's Decision under reference 06S.234280 are ultra vires and invalid;

5. A declaration that Conditions 2, 3 and 6 of the said Grant of planning permission and each of them are ultra vires and invalid and are not severable from the remainder of the permission;

6. Further and other relief;

7. Interim and Interlocutory relief.

8. The costs of these proceedings.’

The reliefs sought in respect of condition 2 are no longer being pursued by the applicant. By order of McGovern J. dated 8th December, 2014, the proceedings entered the Commercial List pursuant to O. 63A, r. 4 of the Rules of the Superior Courts as amended.

2 THE PARTIES

2.1 The applicant (Dunnes Stores) is a private unlimited company registered in the State having its registered offices at 46-50 South Great George's Street, Dublin 2. It carries on a retail activity as one of the anchor tenants in The Square Shopping Centre, Tallaght, the proposed redevelopment of which is the subject matter of the decision under challenge.

2.2 The first respondent (The Board) is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts 2000 to 2015.

2.3 The first-named notice party (Indego) is the applicant for the proposed development.

2.4 The second-named notice party (South Dublin County Council) is the relevant planning authority. The second-named notice party was not legally represented, nor did it make submissions, during the course of the hearing.

3 FACTUAL BACKGROUND

3.1 On 27th September, 2013, Indego applied to South Dublin County Council for planning permission (Ref. SD13A/0192) for the phased construction of two independent extensions, one to the north (Plot A) and one to the south (Plot B) to The Square. The extensions compromise a gross total floor area of 21,490 sq. m. and a car park area of 22,861 sq. m., the total development being 44, 351 sq. m. An environmental impact statement (‘EIS’) accompanied the planning application.

3.2 Plot A (North) is an extension to the existing shopping centre with a total gross floor area of 15,806 sq. m. and comprising an anchor retail unit (6,032 sq. m.) and eight number retail units (ranging from 136 sq. m. to 2,735 sq. m. and totalling 7,456 sq. m.) and associated ancillary accommodation and circulation areas over two levels accessed from a single level mall extending from the existing northern entrance (at Level 2) into the existing surface car park (removing 289 existing spaces). The northern extension ranges in height from 13.3 metres to 15.5 metres along the proposed new northern elevation. Plot A includes a six level multi-storey car park with 832 car spaces (22,861 sq. m.) and ancillary accommodation ranging in height from 14.8 metres to 16.6 metres to the east of the site with access/egress from/to Belgard Square East with a revised road layout and circulation. The development on Plot A involves new and upgraded hard and soft landscaping which integrates with the existing public realm in the vicinity and which facilitates future proposals for a transport interchange by South Dublin County Council. Service yards are proposed on the western portion of the site with access from a realigned access road from Belgard Square West and on the eastern portion of the site with access from the entrance road which accesses the new multi-storey car park.

3.3 Plot B (South) is an extension to the existing shopping centre at Level 3 with a total gross floor area of 5,684 sq. m. and comprising a retail unit and associated ancillary accommodation. The proposed new retail unit will incorporate the existing units (U307 and U307A) totalling 415 sq. m. to gain access to the existing mall at Level 3. The southern extension will result in the removal of 111 parking spaces and will have a parapet height of 12.3 metres to 13.5 metres above existing ground level at the southern elevation. Permission is also sought for all associated site and development works associated with the above developments including revisions to public realm, revisions to roads layout and footpaths, hard and soft landscaping, ESB substation and building mounted signage. The development proposed results in a net increase in parking associated with The Square of 432 spaces, all on a 3.5 hectare site at The Square Shopping Centre, Belgard Road, Tallaght, Dublin.

3.4 Dunnes Stores operates out of a retail unit of approximately 11,000 sq. m. and is one of the main anchor tenants in the centre. Its unit is located on the north-east corner of level two which is currently accessed from the northern car park via the northern entrance.

3.5 By a decision dated 24th March, 2014, the South Dublin County Council granted planning permission for the proposed development subject to 24 conditions. On 22nd April, 2014, the applicant appealed the decision to the Board. The Board appointed an Inspector to prepare a report on the appeal. By a decision dated 23rd September, 2014, the Board granted planning permission...