Palmerlane Ltd v an Bord Pleanála
 IEHC 92
THE HIGH COURT
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 8
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 11(4)(A)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV
MCMAHON V DUBLIN CORPORATION
Judicial review; planning; unauthorised use; warning notice; incidental use; mandamus; certiorari; warning notice served in respect of the sale of hot food at a retail premises; applicants seek orders of mandamus and certiorari in respect of refusal of respondent to determine reference under s. 5; whether the sale of hot food could be a development or exempted development; whether there was a proper and valid reference under s.5; whether this was a proper issue for determination under s.5; whether the fact that sale of hot food commenced on the same date as the opening of the business, disentitles applicant from seeking reference under s.5; s. 5(1) Local Government (Planning and Development) Act, 1963; s. 26, Local Government (Planning and Development) Act, 1976; Local Government (Planning and Development) Regulations, 1994
Held: Applicant entitled to reference under s.5; declaration and order of certiorari granted - (High Court - McGuinness J. - 28/01/1999) -
Palmerlane v. An Bord Pleanála
The refusal of the respondent to consider the reference created the anomalous and unreasonable situation that if the applicant were to select another of its "Spar" shops where the position was that the premises had been in use as a retail shop under an earlier planning permission and the applicant had embarked on a limited sale of hot food for consumption off the premises, the applicant could successfully have sought a determination of a reference under section 5 of the Local Government (Planning and Development) Act 1963. It was in accordance with reason and common sense that where a very large number of convenience stores operated in the same way as the applicant, questions such as that posed in the reference should be determined on a consistent basis by the respondent. The applicant's submission to the respondent constituted a reference. The High Court so held in quashing by certiorari the decision of the respondent.
Mrs Justice McGuinness delivered the 28th day of January 1999.
In these Judicial Review proceedings the Applicant seeks a number of reliefs in connection with an attempted reference to An Bord Pleanála pursuant to Section 5(1) of the Local Government (Planning and Development) Act, 1963, ("the 1963 Act"). The section in question, as amended by the Local Government (Planning and Development) Act, 1976, provides as follows:-
"5 (1) If any question arises as to what in any particular case is or is not development or exempted development the question shall be referred to and decided by the Board." (i.e. An Bord Pleanála).
The Applicant is a limited company which inter alia is the owner and operator of premises at 32 Dame St in the city of Dublin. These premises consist of a retail shop on the ground floor, storage facilities in the basement and a number of residential apartments on the upper floors. Planning permission for all these uses was granted by the planning authority. Dublin Corporation, on the 14th April, 1994.
The retail shop on the premises is a convenience store of the type known as "Spar". The Applicant company operates a number of "Spar" convenience stores in different locations. In common with many other convenience stores, part of the business consists of the sale of hot food for consumption off the premises. According to the Affidavit of Bernard McHugh, Chartered Town Planner, who has acted for the Applicant company in its dealings with the planning authority and with An Bord Pleanála, this aspect of the business consists of the sale of "small quantities of hot bread, hot chickens, sausage rolls and similar type matters from a delicatessen counter within the retail premises". Mr McHugh examined the position with the Applicant's architech and deposes that the business of the sale of hot food "amounted to no more than 2% of the total floor area of the building and that in terms of the turnover amounted to less than 2% of the sales of the premises." It is clear from the documentary evidence that this type of sale of hot food had been a part of the shop's business since its commencement pursuant to the 1994 planning permission.
On the 6th March, 1996 the planning authority (the Notice Party) issued a warning notice pursuant to Section 26 of the Local Government (Planning and Development) Act, 1976as amended. This notice referred to an unauthorised use of part of the shop premises for the sale of take-away hot food and required that this unauthorised use should cease forthwith. If the unauthorised use was continued proceedings under Section 26 of the 1976 Act might be brought against the Applicant. The penalties for conviction under Section 26 were set out at the foot of the notice.
The managing director of the Applicant company contacted Mr McHugh, who entered into correspondence with the Notice Party in which he argued that the sale of hot food in the Dame Street shop was on a small scale and merely incidental to the general business of the shop. On the 25th September, 1996 Mr McHugh wrote to the Planning Department of Dublin Corporation. He acknowledged that the definition of the word "shop" as set out in Article 8 of the Local Government (Planning and Development) Regulations 1994 did not include use for the sale of hot food for consumption off the premises but submitted that the situation was covered by Articles 11(4)(a) of the same Regulations which provides "A use which is ordinarily incidental to any use specified in part IV of the Second Schedule is not excluded from that use as an incident thereto merely by reason of its being specified in the said Part of the Said Schedule as a separate use."
The Planning Department did not agree with Mr McHugh's submission and by letter dated 29th October, 1996 they refused to withdraw the warning notice. For the purposes of the present proceedings there is no necessity for this Court to go into the detail of the case made by Mr McHugh to the Notice Party, still less to endeavour to decide the issue between them. It is sufficient to say that in my view the Applicant company has at least a stateable case on the matter. It is also a fact observable by any member of the general public that the vast majority of convenience stores operate a minor hot food business of the same nature as that operated by the Applicant company, so that the question in regard to its permissibility as part of a "shop" as defined in the planning regulations will in all probability arise in many other cases.
As the Applicant, as advised by Mr McHugh, perceived matters, a dispute had arises between it and the Notice Party as to whether the sale of hot food in the Dame Street shop was a development as defined in the planning legislation. Mr McHugh formed the opinion that a dispute had arisen in the case as to whether the alleged unauthorised use was development and/or exempted development and that this matter was required to be determined by An Bord Pleanála pursuant to Section 5 of the 1963 Act. On the 4th February, 1997. on the instructions of the Applicant. Mr McHugh submitted a reference under Section 5 to An Bord Pleanála, together with the requisite fee. He put forward to the Board a similar argument in regard to incidental or ancillary use as he had already put to Dublin Corporation. His letter of reference was quite lengthy and detailed, and included references to various aspects of planning law. It is exhibited with his Affidavit, again it is not necessary here to go into the merits of his argument. On the 16th April, 1997 An Bord Pleanála replied seeking further information in regard to details of the hot food business. On the 29th April, 1997 Mr McHugh forwarded the information as requested by the Board....
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