PKB Partnership v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 03 October 2022
• Neutral Citation: [2022] IEHC 542
• Court: High Court
• Docket Number: Record No. 2018/661 JR

In the Matter of Section 50 of the Planning and Development Act 2000 as Amended

Between

PKB Partnership

Applicant

and

An Bord Pleanála

Respondent

and

South Dublin County Council

First Notice Party

and

Poundland Limited Trading as Dealz

Second Notice Party

[2022] IEHC 542

Record No. 2018/661 JR

THE HIGH COURT

JUDICIAL REVIEW

Judgment of Mr Justice Cian Ferriter dated this 3 ^rd day of October 2022

Introduction

1 In these judicial review proceedings, the applicant, PKB Partnership (“PKB”), seeks an order of certiorari quashing the decision of the respondent, An Bord Pleanála (the “Board”) dated 12th June 2018 (the “decision”). The decision represents the outcome of a review by the Board of a decision made by the first notice party, South Dublin County Council (the “Council” or “the planning authority”) on a referral made by PKB pursuant to s.5 of the Planning and Development 2000 Act as amended (“s.5”) whereby the Board decided “ that the use of a permitted retail warehouse unit to use as a discount store for the sale of small scale convenience goods at Unit Number 3, Fonthill Retail Park, Fonthill Road, Dublin is development and is not exempted development”.

2 Section 5 provides for a procedure whereby any question as to what is or is not development or is or is not exempted development for the purposes of the Planning and Development 2000 Act as amended (“the 2000 Act”) may be referred to a planning authority for a declaration on that question. The section provides for a determination, initially, by the planning authority and, thereafter, on review by the Board. Simons on Planning Law (third edition, 2021) (“ Simons”), at para. 2–293, observes as follows in relation to the s.5 procedure:- “ The s. 5 procedure is unusual in that it confers a jurisdiction upon a public authority to determine issues which, in many instances, will necessitate an adjudication on questions of law. That is the limit of the scope of s. 5. It does not grant permission for development and it is not a mechanism for the enforcement of compliance with the Planning and Development Acts but rather provides clarity on the status of an existing or prospective development” (citing, in this regard, Friends of the Irish Environment Ltd v. An Bord Pleanála [2020] IESC 14 at paras. 56–58).

3 The second notice party to these proceedings (“Poundland”) did not actively participate in these proceedings. Rather, Poundland brought its own proceedings separately challenging the same decision of the Board (being High Court proceedings, Record No.2018/666JR between Poundland as applicant and the Board, Ireland and the Attorney General as respondents (with the Council and PKB as notice parties)). I will refer to those proceedings as the Poundland proceedings. The two matters were heard together before me. I am today also delivering a separate judgment in the Poundland proceedings. Poundland's challenge was based on different grounds to those of PKB, being grounds related to fair procedures as regards Poundland.

Background

4 PKB is the owner of Unit Number 3, Fonthill Retail Park, Fonthill Road, Dublin (the “premises” or “unit 3” as appropriate) which was developed as part of the Fonthill Industrial Park in the late 1990's. Unit 3 is currently occupied by Poundland, who operate a shop from the unit that sells discounted goods.

The 1998 permission

5 The Fonthill Retail Park has been developed subject to a number of permissions. By Order dated 19th March 1998, the Council granted planning permission to Integrated Development Services (PKB's predecessor in title) for a “retail warehouse development” of c.4,210sq metres at the Fonthill Industrial Park, Fonthill Road, Dublin 22 (Reg. Ref. S97A/0791) (the “1998 permission”). The development consisted of three retail warehouse units. None of the conditions attached to the 1998 permission addressed the type of retail activity permitted in the retail warehouse development. There was no evidence before me of the type of use made of the premises immediately following the grant of the 1998 permission.

The 2015 permission

6 On 8th June 2015, PKB sought planning permission from the Council to subdivide unit 3 (Reg. Ref. SD15A/0152). The stated reason for the application was to make the premises more attractive to the market. I will address in more detail the basis of that application later in this judgment.

7 By Order dated 4th September 2015, the Council granted planning permission for the subdivision of unit 3 subject to 5 no. conditions (the “2015 permission”).

8 Condition 2 of the 2015 permission (“condition 2”) provided as follows:

“The range of goods to be sold in the extended retail warehouse unit shall be limited solely to ‘bulky goods’ (as defined in Annex 1 of the Retail Planning Guidelines for Planning Authorities issued by the Department of the Environment, Community and Local Government in April 2012) and shall not include the sale of toys, footwear, sportswear or other clothing.

Reason: In order to prevent an adverse impact on the viability and vitality of the town area and so as not to undermine the retail hierarchy of the area.”

9 The 2015 permission created two permitted units by subdivision. As we shall come to, there is a dispute in these proceedings as to the proper meaning of the phrase “ the extended retail warehouse unit” in condition 2.

10 In or about September 2015, Poundland (trading as “Dealz”) commenced trading from unit 3 (being the description given to one of the two units following sub-division of the original unit 3), selling discounted goods.

Save Our Town Centres s.5 declaration – June 2016

11 By Order dated 3rd June 2016, the Council, on foot of a declaration sought by “Save Our Town Centres”, declared pursuant to s.5 that the change of use from the former retail warehouse to use as a discount store for the sale of non-bulky convenience goods was development and was not exempted development (Reg. Ref. ED16/0025). I might note in passing that the Council, in that case, did not place any reliance on the 1998 permission and rather arrived at its decision based on condition 2 of the 2015 permission.

Planning Authority's Enforcement Proceedings – June 2016

12 Pursuant to s.152 of the 2000 Act, the Council issued a warning letter, dated 27th June 2016, to PKB in respect of unit 3 and alleging an unauthorised development consisting of the change of use from a retail warehouse to use as a discount store for the sale of non-bulky convenience goods without planning permission. The warning letter invited PKB to make submissions to the Council in respect of the alleged unauthorised development by 27th July 2016. By letter dated 25th July 2016, a submission was made by Bilfinger GVA, Planning Consultants on behalf of PKB. This letter sought further time to make a detailed submission to the Council. It appears that no substantive follow up response was made by or on behalf of PKB, presumably pending the outcome of this judicial review.

PKB's s.5 referral – August 2016

PKB's s.5 referral

13 On 12th August 2016, PKB sought a s.5 declaration from the Council as to:

“whether a material change of use at retail unit no. 3 Fonthill Retail Park, Fonthill Road, Dublin 22 arises by reason of the type of goods being sold and consequently whether it is or is not development or is or is not exempted development”

PKB's submissions in support of its s.5 application

14 On 14th September 2016, the Council sought further information from PKB in respect of the type of goods being sold at the premises. On 12th October 2016, detailed submissions were made in reply to the Council by GVA, planning consultants on behalf of PKB. In its submissions, GVA contended that the use of the unit was governed by the 1998 Permission. The principal point made was that permission was granted for the retail use of the premises simpliciter and there was no planning condition attached to the grant of permission that restricted the type of retail goods that could be sold from the premises. Issue was further taken with any approach by the Council which would involve applying current planning policy retrospectively to the 1998 permitted use.

15 In this submission, an argument was made that the 2015 permission, and its restriction on the type of goods to be sold, related to the newly created unit 3A and did not apply to unit 3, the unit occupied by Poundland. This submission contained a description of the type of goods then being sold as being “ the type of goods broadly covered under the goods-based retail classification set out in the Retail Planning Guidelines 2012 for convenience and comparison goods, and include products relating to the following categories: food and drink; health and beauty; home and pet; gardening; leisure and entertainment; stationary and crafts; and party and celebrations”). The submission then noted that “should the planning authority deem it necessary, our client would welcome a site visit to clarify any outstanding questions with regards to the type of goods that are currently being sold”.

Council's decision on PKB s.5 referral – 1st November 2016

16 By Order dated 1st November 2016 pursuant to s.5, the Council declared that a material change of use at unit 3 arose by reason of the type of goods being sold and that it was not exempted development and therefore required planning permission. In its decision the Council specifically noted that the 2015 planning permission referred to a retail warehouse on site for the sale of bulky goods and the permission referred to both units 3 and 3A.

17 The Council in its Order concluded that:- “ Having regard to the planning history on site it is considered that a retail warehouse was permitted on site and unit 3 was then subdivided into two units for the sale of bulky goods. It is considered therefore that the sale of non-bulky goods would constitute non-compliance with planning...