Heatons Ltd v Offaly County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 04 June 2013
• Neutral Citation: [2013] IEHC 261
• Court: High Court
• Docket Number: 37 EXT 2008
• Date: 04 June 2013

Heatons Ltd v Offaly Co Council

BETWEEN

HEATONS LIMITED

APPLICANT

AND

OFFALY COUNTY COUNCIL

RESPONDENT

[2013] IEHC 261

[No. 563 J.R./2012]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Reference to Board - Compliance with planning conditions - Development - Material change of use - Notice of reference - Application for leave to amend pleadings - Requirement to state in full grounds of reference and reasons, considerations and arguments - Whether non-compliance Planning and Development Act 2000, s 127(1)(d) rendered reference invalid - Whether reference asking whether occupier operating in compliance with planning conditions valid - Whether reference could be made without notice to relevant landowner - Keegan v Garda Siochána Complaints Board [2012] IESC 29, (Unrep, SC, 1/5/2012); O'Reilly Brothers (Wicklow) Ltd v An Bord Pleanála [2006] IEHC 363, [2008] 1 IR 187; Roadstone Provinces Ltd v An Bord Pleanála [2008] IEHC 210, (Unrep, Finlay-Geoghegan J, 4/7/2008); Monaghan County Council v Brogan [1987] IR 333; Galway County Council v Lackagh Rock [1985] IR 120; McMahon v Dublin Corporation [1997] 1 ILRM 227; Palmerlane Ltd v An Bord Pleanála [1999] 2 ILRM 214; Grianán an Aileach Interpretative Centre Co Ltd v Donegal County Council [2004] IESC 41, [2004] 2 IR 625; O'Ceallaigh v An Bord Altranais [2000] 4 IR 42; West Wood Club Ltd v An Bord Pleanála [2010] IEHC 16, (Unrep, Hedigan J, 26/1/2010); Dellway Ltd v National Asset Management Agency [2011] IESC 14, [2011] 4 IR 1 and Keegan v Garda Siochána Complaints Board [2012] IESC 29, (Unrep, SC, 1/5/2012) considered - Planning and Development Regulations 2001 (SI 600/2001) - Planning and Development Act 2000 (No 30), ss 3, 5, 127, 128, 129 and 160 - Local Government Act 2001 (No 37), s 155 - Certiorari granted (2012/563JR - Hogan J - 4/6/2013) [2013] IEHC 261

Heatons Limited v Offaly County Council

Facts: The applicant operated a retail store at Tullamore Retail Park at all relevant times. The planning permission that was held for the store was based on certain conditions which included a stipulation that only bulky household goods could be sold and a requirement that any proposed change in occupancy should be agreed with the planning authority. In addition, no change of use for the premises was permitted without a prior grant or planning permission. On the 11th September 2011, the applicant wrote to the respondent stating that it proposed to move into the premises and commence the sale of items that included household goods, soft furnishing and homewares. The respondent wrote back indicating that it considered that the sale of these items would be in compliance of the conditions of the planning permission. The applicant began to trade on the premises. However, a number of inspection reports of the premises carried out by planning officials indicated that a substantial number of non-bulky household goods were being sold. The respondent considered this to be in breach of the planning permission conditions. An enforcement notice was sent by the respondent to the applicant requesting compliance with these conditions but a subsequent inspection report revealed that non-bulky household goods continued to be sold.

On the 17th April 2012, the respondent wrote to An Bord Pleanála requesting that it accept an enclosed referenced that had been sent pursuant to s. 5(4) of the Planning and Development Act 2000 ("the 2000 Act") and which asked whether the applicant was operating in compliance with the relevant planning condition. No notice of this request was given to the applicant. When the applicant did find out about the request, a letter was sent to An Bord Pleanála which made submissions in relation to the reference. The applicant also successfully applied for leave to apply for judicial review on a number of grounds. It was argued that the reference did not comply with the requirements of s. 127(1)(d) of the 2000 Act which states that a reference shall ‘state in full the grounds of appeal or referral and the reasons, considerations and arguments on which they are based’. In this regard, it was alleged that the respondent”s request for consideration of its reference did not outline the grounds of referral or the reasons, considerations and arguments for the reference. It was also argued that the respondent had breached fair procedures in invoking the statutory reference procedure without previously referring the applicant to it.

Held by Hogan J that in regards to the argument that the requirements of s. 127(1)(d) of the 2000 Act had not been fulfilled, it was clear from the respondent”s request to An Bord Pleanála, as well as the supporting documentation, that it was too general in nature and completely silent in outlining the reasons, considerations and arguments for the reference. It was also noted that key documentation had not been enclosed. It was held that pursuant to s. 127(2)(a) of the 2000 Act, such omissions were fatal to the validity of the request. It was also said that the omissions were potentially prejudicial to the applicant in preparing submissions for An Bord Pleanála.

In regards to the fair procedures argument, it was held that although it was accepted that the applicant had not been informed of the statutory reference procedure due to an oversight by the respondent, it was unsatisfactory that the respondent had not even sent a letter to the applicant after the statutory procedure was invoked informing it of the reference. Nevertheless, it was held that there was no legal requirement for the respondent to give the applicant notice that it might invoke the statutory reference procedure. The reason that there was no need for a requirement was because the applicant had a right to make submissions to An Bord Pleanála. However, due to the respondent”s non-compliance with s. 127(1)(d) of the 2000 Act, it was ordered that the reference would be quashed.

PLANNING & DEVELOPMENT ACT 2000 S5(4)

PLANNING & DEVELOPMENT ACT 2000 S154

PLANNING & DEVELOPMENT ACT 2000 S129

PLANNING & DEVELOPMENT ACT 2000 S127

PLANNING & DEVELOPMENT ACT 2000 S127(1)(D)

KEEGAN v GARDA SIOCHANA OMBUDSMAN CMSN 2012 2 IR 570 2012/20/5800 2012 IESC 29

LOCAL GOVT ACT 2001 S155

PLANNING & DEVELOPMENT ACT 2000 S127(2)(A)

PLANNING & DEVELOPMENT ACT 2000 S127(1)

O'REILLY BROTHERS (WICKLOW) LTD v BORD PLEANALA 2008 1 IR 187 2006/47/9974 2006 IEHC 363

PLANNING & DEVELOPMENT ACT 2000 S129(1)

PLANNING & DEVELOPMENT ACT 2000 S129(4)

PLANNING & DEVELOPMENT ACT 2000 S134

ROADSTONE PROVINCES LTD v BORD PLEANALA UNREP FINLAY GEOGHEGAN 4.7.2008 2008/55/11515 2008 IEHC 210

PLANNING & DEVELOPMENT ACT 2000 S3(1)

PLANNING & DEVELOPMENT ACT 2000 S3

MONAGHAN CO COUNCIL v BROGAN 1987 IR 333 1987 ILRM 564 1986/7/1308

GALWAY CO COUNCIL v LACKAGH ROCK LTD 1985 IR 120 1985/5/1197

MCMAHON & ORS v DUBLIN CORP 1996 3 IR 509 1997 1 ILRM 227 1996/13/4138

PALMERLANE LTD v BORD PLEANALA 1999 2 ILRM 514 2000/15/5828

GRIANAN AN AILEACH INTERPRETATIVE CENTRE CO LTD v DONEGAL CO COUNCIL (NO 2) 2004 2 IR 625 2005 1 ILRM 106 2004/19/4446 2004 IESC 43

O CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54 2000/2/648

PLANNING & DEVELOPMENT ACT 2000 S5(5)

WEST WOOD CLUB LTD v BORD PLEANALA UNREP HEDIGAN 26.1.2010 2010/53/13282 2010 IEHC 16

DELLWAY INVESTMENTS LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY & ORS 2011 4 IR 1

1 JUDGMENT of Mr. Justice Hogan delivered on 4th June, 2013

2 1. May a planning authority make a reference to An Bord Pleanála pursuant to s. 5(4) of the Planning and Development Act 2000 ("the 2000 Act"), without notice to the relevant landowner in question and, if so, is a reference which asks whether the occupier of the premises is operating in compliance with relevant planning conditions a valid reference for this purpose? These are among the essential issues which arise in the present judicial review proceedings.

3 2. The applicants operate a department store at Unit H, Tullamore Retail Park, Cloncollog, Tullamore, County Offaly for which they have planning permission, albeit a permission which is subject to certain conditions. It is the nature of these conditions which assumes a particular importance so far as the present case is concerned.

4 3. Conditions No. 2 and No. 16 of the relevant planning permission (PL2-01-651) provide as follows:-

5 2 "6. The range of goods permitted to be sold in the approved units shall comprise only bulky household goods such as carpets, furniture and white electrical goods, DIY items and auto motor products…

6 16. Details of occupancy of each unit hereby approved and any subsequent change in occupancy shall be agreed with the planning authority…"

7 4. These conditions were further augmented by supplementary planning permission (PL2-04-254) which amends the earlier planning permission, Condition No. 2 of which provides:-

8 2 "2. Permission is granted for the removal of Condition 6 of PL2-01-651 to allow use as a catalogue retail store in relation to Unit D only. Units A, B, C, E, F, G and H shall remain as retail warehouse uniting and the range of goods permitted to be sold shall comprise only bulky households goods such as carpets, furniture and white electrical goods, DIY and auto motive products. No change of use shall take place without a prior grant or planning permission (notwithstanding the exempting development provisions of the Planning and Development Regulations 2001)."

9 5. On 11 ^th September, 2007, Messrs Simon Clear & Associates, wrote to Offaly County Council indicating that it was now proposed that Unit H would be used by Heatons for the following purposes:-

"The proposed store will encompass total gross floor space of approximately 2592m ² (the figure includes 1296m ² of mezzanine floor space). The main retail and display floor area will provide for the...