South-West Regional Shopping Centre v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 04 February 2016
• Neutral Citation: [2016] IEHC 84
• Court: High Court
• Docket Number: [2015 Nos. 282 JR & 80 COM],[2015 No. 282 JR] [2015 No. 80 COM]
• Date: 04 February 2016

IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000,

AS AMENDED

BETWEEN

SOUTH-WEST REGIONAL SHOPPING CENTRE PROMOTION ASSOCIATION LIMITED AND STAPLEYSIDE COMPANY

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

LIMERICK CITY AND COUNTY COUNCIL AND REGIONAL RETAIL PROPERTY DEVELOPMENT AND TRADING LIMITED

NOTICE PARTIES

[2016] IEHC 84

Costello J.

[2015 No. 282 JR]

[2015 No. 80 COM]

THE HIGH COURT

COMMERCIAL

Local government – Planning & Development – The Planning and Development Act 2000 – Validity of the decision of the Board – Power to amend an existing grant of planning permission – EIA Directive – Environment Impact Assessment (EIA) – Jurisdiction of Board

Facts: The applicants sought an order of certiorari for quashing the decision of the respondent/Board for granting the planning permission to the second notice party on appeal thereby reversing the decision of the planning authority to refuse permission. The applicants raised the following contentions that the Board did not have an implied power to amend the planning permissions in the circumstances not envisaged under s. 146B and s. 146C of the Planning and Development Act 2000; that the duration of planning permissions extended beyond the life of the original parent planning permission; that the Board had no jurisdiction to go beyond the merits of an application and determine the issue de novo; that the Board had an obligation to carry out new EIA, which it failed to do.

Ms. Justice Costello refused to grant the desired reliefs to the applicants. The Court held that under s. 42A of the said Act of 2000, the extension of a planning permission was allowed across three cycles of development plant provided that substantial works had been carried out at the site and that such an application must be made within the last year of the life of the existing permission. The Court observed that under s. 37 (2) (a) of the said Act, the Board had power and jurisdiction to grant planning permission even if there was material contravention of the development plan and the Board could revisit and review the decision of the planning authority and decide the appeal de novo. The Court opined that the change of a development plan in itself would not raise the possibility of having significant environmental impact thus requiring an EIA, and that there must be substantial evidence to prove the contrary. The Court held that the correct basis to assess an application to amend the existing planning permission was to reassess the proposed changes and amendments in the light of current development plans and ministerial guidelines and there should not be reassessment of the matters that were the subject of an extant planning permission.

JUDGMENT of Ms. Justice Costello delivered on 4th day of February, 2016.

1 In these proceedings the applicants seek an order of certiorari setting aside the entire decision of An Bord Pleanála (‘the Board’) dated 8th April, 2015, to grant planning permission to the second notice party (‘the Developer’) and other declaratory reliefs in relation to a development of a large mixed retail and commercial use development at Parkway Valley, Singland, Co. Limerick (‘the Development’).

2 The applicants argue that the proceedings raise an issue of planning law of fundamental importance. The issue centres on whether the Board has jurisdiction to grant a revision, or to make an amendment, to an extant planning permission other than in the very limited circumstances identified at ss. 146A-146D of the Planning and Development Act 2000, as amended (‘the 2000 Act’). Other ancillary arguments are also advanced as discussed further below.

3 The first applicant is a company incorporated with the object of promoting and protecting the trade and business interests of persons and companies carrying on business in the Crescent Shopping Centre, Dooradoyle, Limerick. Membership of the first applicant is comprised of the tenants of the Centre. The Crescent Shopping Centre comprises approximately 32,000 m2 of retail space with approximately 90 retail tenants. If developed, the Development would be in direct competition with the Crescent Shopping Centre.

4 The second applicant is a private unlimited company with share capital incorporated in the State under the Companies Acts 1963-2006. It is a subsidiary of a group of companies engaged, inter alia, in holding property. At all material times the second applicant was the registered owner of the Crescent Shopping Centre, Limerick from 13th November, 1992, to 16th December, 2014, when it divested that interest in favour of another subsidiary within the group of companies. The second applicant continues to have an interest in the adjoining lands.

5 Leave to challenge the decision of the Board was granted by Binchy J. on 26th May, 2015, on the following substantive grounds:-

‘1. An order of certiorari setting aside the entire decision of An Bord Pleanala dated 8 April 2015 to grant planning permission to the [Developer]. The said decision bears the reference number PL91.243874 (Reg. Ref 14/828, Limerick City and County Council)…

2. A declaration that the said decision and/or the grant of planning permission are invalid and void ab initio;

3. A declaration that An Bord Pleanala was not entitled to treat the application for planning permission on the basis that it represented a “revision”, “variation” or “amendment” of earlier planning permissions;

4. A declaration that An Bord Pleanala was required to assess the application for planning permission on its own merits, by reference to the current versions of the relevant planning policy documents, in particular, the statutory development plan; the statutory local area plan, statutory guidelines; regional planning guidelines; and retail strategy;

5. A declaration that the application for planning permission must be subject to environmental impact assessment in accordance with the requirements of the Environmental Impact Assessment Directive (2011/92/EU) and the implementing provisions under Planning and Development Act 2000 (as amended)’.

Background

6 On foot of a series of planning applications made by Alocin Ltd., commencing in July, 2004, Limerick County Council granted planning permission for the construction of a mixed-use development at a site located at Singland, Co. Limerick, an out of town located on the outskirts of Limerick City. The initial planning application was made under reference no. 04/3700, which was granted permission on 15th August, 2006, for the following development:-

‘…construction of mixed use commercial and leisure development incorporating public park. Construction of 2 no. main anchor stores and 46 no. retail/commercial units; restaurants; foodcourt comprising of 8 no. separate outlets; family leisure-plex; public library; creche; administration; staff facilities; 10 screen cine-plex; surface and basement mulit-story (sic) car parking; 2 no. service yards; 9 no. ESB substations, pumping station, signage, mast sign, landscaping and associated site and development works.’

7 Thereafter, a number of further planning permissions were granted by Limerick County Council on the following dates: 25th January, 2007 - PA Ref. No. 06/3211; 29th March, 2007 - PA Ref. No. 06/4103; and 11th October, 2007- PA Ref. No. 07/1024. Each of these grants of Planning Permission varied or amended the original or parent grant 04/3700. In each case the duration of the planning permission was linked to the duration of the original grant 04/3700. In each case the application was in respect of the entire development as revised and amended by the new application and applied to the entire site. The drawings filed showed the proposed development based upon the previously permitted development with the amendments and revisions sought in the new application. This was done following consultation with the Planning Authority in order to present the application and the effect of the application on the existing grants of permission as clearly as possible. Thus, there were separate grants of planning permission for one composite development. All of these grants were made by the then Planning Authority, Limerick County Council by reference, inter alia, to its current development plan.

8 Due to the severe economic turmoil commencing in 2008, development on the site ceased in 2009 by which stage approximately €35 million had been expended in partially carrying out the Development. The planning permissions were due to expire so applications were made to extend the duration of the permissions. On 16th December, 2011, the Planning Authority made a decision, pursuant to s. 42A(1)(a)(i) of the 2000 Act, to grant an extension of duration in respect of four planning permissions, register reference numbers 04/3700, 06/3211, 06/4103 and 07/1024. The duration of each planning permission was extended to 14th August, 2016. In so deciding, the Planning Authority was satisfied that development had commenced on the site before the expiration of the life of the existing planning permissions; that substantial works had been carried out pursuant to the permissions during the period and the Planning Authority believed that the Development would be completed within a reasonable time.

9 On 16th December, 2011, the Planning Authority refused an extension of duration in respect of two further planning permissions bearing register reference numbers 08/645 and 09/236.

10 In 2010, Limerick City and County Council adopted two new Development Plans for the City and the County of Limerick 2010-2016. These plans adopted objectives and policies in relation to retail development which differed significantly to those applicable under the previous development plan applicable to the site at Singland. In particular, the plans favoured the location of retail development...