Kelly v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 08 February 2019
• Neutral Citation: [2019] IEHC 84
• Docket Number: [2017 No. 883 J.R.]
• Court: High Court
• Date: 08 February 2019

BETWEEN

EOIN KELLY

PLAINTIFF/APPLICANT

AND

AN BORD PLEANÁLA

DEFENDANT/RESPONDENT

AND

ALDI STORES (IRELAND) LIMITED

NOTICE PARTY

[2019] IEHC 84

Barniville J.

[2017 No. 883 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

COMMERCIAL

Planning and development – Council Directive 92/43/EEC – Retail impact assessment – Applicant seeking to challenge a decision of the respondent – Whether the respondent failed to specify in its decision the matters which it considered and to which it had regard in determining the notice party’s application for permission

Facts: The applicant, Mr Kelly, brought proceedings in order to challenge a decision of the respondent, An Bord Pleanála which was made in September 2017 to grant permission to the notice party, Aldi Stores (Ireland) Ltd, for the development of a “discount foodstore (to include off-licence use)” at Strand Road, Laytown, Co. Meath. The applicant obtained leave from the High Court (Noonan J) to challenge the Board’s decision on several grounds, on 13th November, 2017. The grounds of challenge fell under three general headings. The first set of grounds alleged various breaches of the EC Habitats Directive (Council Directive 92/43/EEC). The applicant challenged, in particular, the screening for appropriate assessment carried out by the Board under Article 6(3) of the Habitats Directive and s, 177U of the Planning and Development Act 2000. The second ground concerned the retail impact assessment carried out by the Board and, in particular, the acceptance by the Board and its inspector of what the applicant contended was a materially flawed sequential test in respect of the contested development. The third ground was that the Board failed to specify in its decision the matters which it considered and to which it had regard in determining the application for permission. As well as disputing the substance of the applicant’s contentions under the three headings, both the Board and Aldi objected to certain of the grounds which the applicant had sought to advance on the basis that they were not pleaded in the manner required under, and did not comply with, Order 84 Rule 20(3) RSC and well established case law of the Irish courts.

Held by Barniville J that the applicant had failed to sustain any of the grounds advanced by him.

Barniville J held that the applicant’s application should be refused and the proceedings dismissed.

Application refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 8th day of February, 2019

Introduction

1 The applicant in these proceedings is a structural engineer who resides in Bettystown, Co. Meath. He previously resided in Laytown, Co. Meath. His parents” family home is also in Laytown. Bettystown is approximately 1.5 kilometres north of Laytown. The applicant has brought these proceedings in order to challenge a decision of the respondent, An Bord Pleanála (the ‘Board’) which was made in September 2017 to grant permission to the notice party, Aldi Stores (Ireland) Limited (‘Aldi’), for the development of a ‘ discount foodstore (to include off-licence use)’ at Strand Road, Laytown, Co. Meath.

2 The applicant obtained leave from the High Court (Noonan J.) to challenge the Board's decision on several grounds, on 13th November, 2017. The proceedings were subsequently admitted to the Commercial List on Aldi's application. The applicant decided not to pursue a number of the grounds for which leave had been obtained. The grounds on which the applicant now seeks to challenge the decision fall under three general headings. The first set of grounds alleges various breaches of the EC Habitats Directive (Council Directive 92/43/EEC) (the ‘Habitats Directive’). The applicant challenges, in particular, the screening for appropriate assessment carried out by the Board under Article 6(3) of the Habitats Directive and Section 177U of the Planning and Development Act 2000 (as amended) (the ‘2000 Act’). The second ground concerns the retail impact assessment carried out by the Board and, in particular, the acceptance by the Board and its inspector of what the applicant contends was a materially flawed sequential test in respect of the contested development. The third ground of challenge advanced by the applicant is that the Board failed to specify in its decision the matters which it considered and to which it had regard in determining the application for permission.

3 Both the Board and Aldi have resisted the applicant's application and have contended that there is no basis for impugning the decision on any of the grounds advanced by the applicant. As well as disputing the substance of the applicant's contentions under the three headings summarised above, both the Board and Aldi have objected to certain of the grounds which the applicant has sought to advance on the basis that they were not pleaded in the manner required under, and did not comply with, Order 84 Rule 20(3) RSC and well established case law of the Irish courts.

4 For reasons which I set out in detail in this judgment, I have concluded that the applicant has failed to sustain any of the grounds advanced by him and that, as a consequence, the applicant's application should be refused and the proceedings dismissed.

Structure of Judgment

5 I will adopt the following structure in this judgment. First, I will summarise the relevant factual background. That will include a description of the contested development, the planning status of the site, the history of Aldi's application and the issues and material before the planning authority and the Board. In this context I will refer to the report of the inspector appointed by the Board and the decision of the Board itself. Second, I will outline the grounds now relied on by the applicant in the proceedings and the evidence relied upon by him to challenge the Decision as well as the evidence relied on by the Board and Aldi in response. Third, I will consider each of the grounds relied upon by the applicant in greater detail, setting out my conclusions in relation to each ground as I deal with the relevant ground. Finally, I will summarise my conclusions at the end of the judgment.

Relevant factual background

6 The factual background outlined below is based on the uncontested evidence before me.

7 On 8th April, 2016 Aldi applied to the planning authority, Meath County Council (the ‘Council’), for permission for a development comprising, inter alia, the demolition of a building and construction of a single storey discount foodstore to include off-licence use, car parking and all associated site works at Strand Road, Laytown, Co. Meath. Aldi's application was accompanied by a number of reports including a screening report dated April 2016 compiled by Openfield Ecological Services (‘Openfield’)(‘ Screening Report for Appropriate Assessment for discount food store at Laytown, Co. Meath’) (the ‘screening report’) and a retail impact statement and attached sequential test dated April 2016 prepared by John Spain Associates (the ‘retail impact statement’).

8 As noted by the Board's inspector in her report, five Natura 2000/European sites were considered potentially relevant to the development. They are: The River Nanny Estuary and Shore Special Protection Area (SPA), which is located approximately 30 metres away to the east and south of the site of the development; The Boyne Estuary SPA and Boyne Coast and Estuary Special Area of Conservation (SAC), which are located 4 kilometres north of the site of the development; The River Boyne and River Blackwater SAC and River Boyne and River Blackwater SPA, which lie approximately 12 kilometres east/north east of the site. The screening report considered the potential impact of the development upon these Natura 2000/European sites.

9 The retail impact statement considered, amongst other things, the site location and description (the site was accommodated by a nursing home which closed in 2011), a description of the proposed development, an explanation of the ‘Aldi concept’ and the nature of its business and set out in some detail the planning policy and local planning policy contexts relevant to the development. The report noted that the site is zoned for ‘ B1 Commercial/Town or Village Centre’ development in the East Meath Local Area Plan 2014-2020 (the ‘East Meath LAP’) with the objective of such zoning being ‘ to protect, provide for and/or improve town and village centre facilities and uses’ and permitted uses including convenience outlet, supermarket/superstore and shop use. The retail impact statement also addressed the Retail Planning Guidelines for Planning Authorities issued by the Department of the Environment, Community and Local Government in April 2012 (the ‘Retail Planning Guidelines’) and the sequential approach to development provided for under those guidelines. In addition, the retail impact statement considered the Meath County Development Plan 2013–2019 (the ‘Development Plan’) and the Meath Retail Strategy 2013-2019 (the ‘Meath Retail Strategy’), which is contained in Appendix 5 to the Development Plan. The retail impact statement then provided a qualitative and quantitative assessment in respect of the development and attached, at Appendix 1, the sequential test referred to in the Retail Planning Guidelines.

10 The applicant lodged an observation with the Council on 11th May, 2016. He raised a number of concerns in that observation. Those concerns included the scale of the proposed building, the fact that there were unoccupied retail units in Bettystown and that the Bettystown Town Centre (a mixed use development in Bettystown) would be adversely affected by the proposed development, traffic impacts and the accuracy of a traffic survey undertaken by Aldi.

11 The applicant made no complaint in relation to the retail impact statement or the sequential test attached to it. Nor did the applicant raise any concerns in relation to the ...