Dunnes Stores v Bord Pleanála and Others

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date13 November 2015
Neutral Citation[2015] IEHC 716
CourtHigh Court
Date13 November 2015

[2015] IEHC 716

THE HIGH COURT

Record No. 49JR/2015
Dunnes Stores v Bord Pleanala & Ors
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND SECTION 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION

Between:

DUNNES STORES
Applicant

- and -

AN BORD PLEANÁLA
Respondent

- and -

KILKENNY COUNTY COUNCIL
First Notice Party

- and -

DEERLAND CONSTRUCTION LIMITED
Second Notice Party

Local government – Planning permission to construct development – Contract to purchase anchor site – Repudiation of contract – Arbitral award – Certiorari – Abuse of process of law – Ulterior motive

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for granting retention permission to the second named notice party after being given planning permission for carrying out the construction of a shopping centre by the first notice party. The respondent contended that since there was no allegation of any violation of planning rule, the present application was brought with an ulterior motive to avoid the compliance of an arbitral award made against the applicant for the repudiation of contract entered into between the applicant and the second notice party to purchase an anchor site in the said development.

Mr. Justice Max Barrett dismissed the proceedings brought by the applicant. The Court found that the present application for reviewing retention permission, without any issue with the substance of adjustments to which the permission related, was nothing but an abuse of process of law. The Court held that an abuse of process of law occurred where the judicial process was employed to achieve an ulterior purpose, and in order to ascertain whether there was an abuse, the Court must determine whether there was a relationship between the plaintiff's intended result and the remedy available in the underlying proceedings. The Court held that there must be some legitimate use of administrative law remedies and the fact that the chosen legal remedy conferred a collateral benefit to the applicant or the use of the legal remedy to claim collateral benefit, would not be a ground for refusal to grant the relief sought by the applicant. The Court found that the present application was false, vexatious since the applicant wanted to delay or avoid compliance with its contractual obligations to occupy the anchor store.

TABLE OF CONTENTS
PART 1: INTRODUCTION [1]
PART 2: BACKGROUND FACTS [2]

i. Overview

[2]

ii. Summary chronology

[2]

iii. Standard reliefs, minor alterations and strange proceedings

[3]

a. The standard

[3]

b. The minor

[4]

c. The strange

[5]

PART 3: DUNNES' INVOLVEMENT IN THE ON-GOING DEVELOPMENT [6]

i. The first affidavit of Mr Sheridan

[6]

ii. The Development Agreement

[11]

a. Overview

[11]

b. Clause 7 ("The Plans")

[12]

c. Clause 9 ("Development")

[16]

d. Clause 10 ("Inspection of the Store Building Works by the Company")

[18]

e. Clause 9 ("Development") and the 'Fit-Out' Arbitration

[22]

f. Clause 12 ("Store Practical Completion")

[24]

g. Clause 13 ("Centre Practical Completion")

[25]

h. Clause 22 ("Default and Termination")

[29]

PART 4: VARIOUS CONTENTIONS OF DUNNES [32]
PART 5: THE LAW AS TO 'ABUSE OF PROCESS' [45]

i. Cronin v. Mangan and Others

[45]

ii. Grant v. Roche Products (Ireland) Ltd.

[47]

iii. Sean Quinn Group Limited v. An Bord Pleanála

[50]

iv. State (Toft) v. Galway Corporation

[58]

v. State (A benglen Properties) v. Dublin Corporation

[62]

PART 6: SOME PRINCIPLES APPLICABLE TO 'ABUSE OF PROCESS' [64]

I. Importance of Judicial Review

[65]

II. What is 'Abuse of Process'?

[66]

III. How to identify 'Abuse of Process'

[67]

IV. Legitimate and Non-legitimate Use of Administrative Law Remedies

[71]

V. Threatening and Abusing Court Proceedings

[73]

VI. Need for Caution before 'Striking Out'

[74]

VII. Relevant Factors in an 'Abuse of Process' Application

[75]

VIII. Interests of Other Litigants

[76]

IX. Remedy of Certiorari

[78]

PART 7: CONCLUSIONS [81]
PART 1: INTRODUCTION
1

1. Dunnes Stores has brought this application ostensibly for one purpose; in truth the application serves a very different end. On its face, the application is concerned with the legality of a decision of An Bord Pleanála to grant certain retention permission to Deerland Construction. That permission concerns a shopping centre development at Ferrybank, in County Kilkenny. The 'anchor store' at that development is owned by Dunnes. The retention permission authorises five alterations which, individually and collectively, are minor and cosmetic in nature. In a twist worthy of Lewis Carroll, Dunnes in fact has no issue with the alterations that are the subject of the retention permission. So why have these proceedings been commenced? If truth be told, they have nothing to do with planning law and everything to do with Dunnes securing an advantage for itself in a long-running contractual dispute with Deerland and National Asset Loan Management Limited ('NALM'). (This last entity has acquired certain loans of both Deerland and a Deerland subsidiary known as Holtgen). A preliminary issue that therefore arises in this application is whether it comprises an 'abuse of process' that justifies the court in refusing the reliefs sought, declining to consider the purported planning-related issues arising, and dismissing the proceedings.

PART 2: BACKGROUND FACTS
i. Overview
2

2. The facts of this case can be reduced to a useful chronology. Some of the terms used in the chronology are capitalised because they have a defined meaning for the purpose of the transaction documentation agreed between Dunnes and the Ferrybank developers. It is unnecessary for the court to provide the relevant definitions as the terms employed are largely self-explanatory; their exact meaning is in any event well-known to the parties.

ii. Summary chronology

4 August 2006

Kilkenny County Council grants Deerland planning permission (05/1287) for the Ferrybank Shopping Centre.

March 2007

Work on the Centre commences.

22 nd March 2007

Kilkenny Comity Council grants amending permission (06/2010) to Deerland.

12 th June 2007

Dunnes enters into a contract to purchase the site of the anchor store for €2.25m

13 th June 2007

Dunnes enters into a Development Agreement and agrees to pay €37.5m for the construction of the anchor store.

1 st November 2007

Kilkenny County Council grants amending permission (07/1420) to Deerland.

2008 generally

Throughout 2008, Holtglen encounters difficulties in completing the development and Dunnes makes clear that it has no great interest in opening the anchor store. In July, a representative of Dunnes advises a representative of the developer that, absent a €15m discount on the price of the anchor store, Dunnes will not open the store. Relations between the parties deteriorate. Notably, Dunnes at no point expresses concern that the development has not been built in compliance with the applicable planning permission.

28 th October 2008

Dunnes serves a 'Cure Notice' under cl.22.1(a) of the Development Agreement. No breach of planning requirements is alleged.

14 th May 2009

Joint inspection of anchor store takes place.

20 th May 2009

Dunnes issues an Objection Notice specifying various issues and defects.

28 th May 2009

Dunnes issues a Step-In Notice to Bank of Ireland.

10 th June 2009

Practical completion of the anchor store is claimed to have been achieved. Hereafter, Dunnes has 20 weeks to fit out and open the anchor store. However, Dunnes disputes that practical completion has been achieved.

21 st July 2009

Joint inspection for the purpose of certifying Centre Practical Completion takes place. Dunnes gets to look at the entire centre and everything that has been done. Notably, no issue is raised by Dunnes as to compliance with planning permission.

28 th August 2009

Practical completion of the Centre is achieved.

4 th September 2009

- As mentioned above, Dunnes disputed that practical completion of the anchor store had occurred. On 4 th September, an Independent Architect determines that practical completion was reached on the previous 10 th June; he rejects all objections advanced by Dunnes as to why practical completion has not been achieved.

- Within hours of the Independent Architect's determination. Dunnes commences an arbitration (the so-called 'Monies Arbitration') claiming an entitlement to terminate under the Development Agreement; Holtglen counterclaims for monies owed. Not a single issue about planning compliance is raised in this arbitration.

15 th June 2011

Arbitrator issues interim award finding that Dunnes is not entitled to terminate. He finds that Holtglen was guilty of some material breaches of the Development Agreement but that all of these breaches were remedied within the applicable, contractually agreed 'cure period'.

7 th October 2011

Arbitrator issues a final award (the 'Award') finding that Holtglen is entitled to succeed on the counterclaim and making an award in favour of Holtglen of in excess of €20m plus interest and costs.

End-Autumn 2011

Notably, despite practical completion having been reached (and having independently been determined to have been reached), and despite having completely lost in the so-called 'Monies Arbitration', Dunnes does not proceed to honour its standing contractual...

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10 cases
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    ...of abuse of process. The High Court considered the principles applicable in this area of the law in Dunnes Stores v. An Bord Pleanála [2015] IEHC 716 and the court does not propose to consider those principles afresh. Suffice it to note that this case does not even get to the threshold of i......
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    ...is coloured by the abuse of process alleged. As it happens, this Court has considered at some length in its recent judgment in Dunnes Stores v. An Bord Pleanála [2015] IEHC 716, the issue of abuse of process in the context of judicial review proceedings and does not propose to do so again ......
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