Tesco Ireland Ltd v Stateline Transport Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 13 November 2023
• Neutral Citation: [2023] IEHC 587
• Docket Number: 2022 197 MCA

In the Matter of Section 160 of the Planning and Development Act 2000

Between

Tesco Ireland Ltd

Applicant

and

Stateline Transport Ltd

Respondent

[2023] IEHC 587

2022 197 MCA

THE HIGH COURT

Appearances

David Dodd for the applicant instructed by Ogier Leman LLP

Gary McCarthy SC and Barry Mansfield for the respondent instructed by Maguire McErlean LLP

Stephen Hughes for Fingal County Council instructed by the Law Agent

JUDGMENT of Mr. Justice Garrett Simons delivered on 13 November 2023

INTRODUCTION

1 This matter comes before the High Court by way of an application for a planning injunction pursuant to Section 160 of the Planning and Development Act 2000. The proceedings relate to the unauthorised use of lands at Compass Distribution Park, Santry, Co. Dublin for the purpose of storing shipping containers. The volume of containers is estimated at between 1,500 and 2,000 units. These are stacked in towers of five or more containers. This unauthorised use has been ongoing since early 2020, i.e. a period of almost four years.

2 The lands are owned by Tesco Ireland Ltd (“ Tesco Ireland”). The lands are the subject of a ten year lease granted by Tesco Ireland to Stateline Transport Ltd (“ Stateline Transport”). Tesco Ireland has instituted the within proceedings against its own tenant, Stateline Transport, in circumstances where Tesco Ireland has been served with an enforcement notice, qua the owner of the lands, by the local planning authority, Fingal County Council.

3 These proceedings were allocated a hearing date of 5 October 2023. On that date, the court was informed that the proceedings had been compromised as between the parties. The respondent, Stateline Transport, is consenting to orders in terms of paragraphs 1 and 2 of the originating notice of motion, i.e. a declaration to the effect that the use of the lands is unauthorised development and an injunction directing that the unauthorised development cease. Counsel for the applicant, Tesco Ireland, indicated that his client is consenting to a stay on the injunction for a period of up to twelve months. Counsel was careful to acknowledge that the decision on whether or not to grant a stay was ultimately a matter for the court.

4 Counsel for the respondent then explained that the purpose of seeking a stay until October 2024 is to allow the respondent time to complete the purchase of an alternative site and to obtain planning permission for the use of that site for the storage of shipping containers. The application for a stay was advanced by reference to an affidavit belatedly sworn on behalf of the respondent by one of its directors which suggested that the immediate cessation of the unauthorised use would result in a “ catastrophic knock-on effect on the freight business generally”. This affidavit was filed without prior leave of the court on 5 October 2023, i.e. the day of the hearing.

5 The proceedings were adjourned to allow the respondent to file further affidavits in support of the application for a stay. The court directed that the Attorney General be put on notice of the proceedings in his capacity as guardian of the public interest and afforded an opportunity, if desired, to make submissions to the court. A similar direction was made in respect of the Planning Authority, Fingal County Council.

6 The application for a stay was ultimately fixed for hearing on 6 November 2023. Prior to that date, the Office of the Chief State Solicitor confirmed that the Attorney General did not intend to make submissions. The Planning Authority has set out its views in open correspondence and counsel attended on its behalf at the hearing to answer any queries that the court might have.

CHRONOLOGY

7 The key events in the chronology are set out in tabular form below:

January 2020	Stateline Transport enter into occupation of the lands
7 December 2020	Warning letter issued by Planning Authority
5 August 2021	Enforcement notice issued by Planning Authority
29 July 2022	Section 160 proceedings instituted by Tesco Ireland
29 November 2022	Application for retention permission
20 January 2023	Planning Authority refuses retention permission
15 February 2023	Appeal to An Bord Pleanála (no decision yet)
5 October 2023	Hearing date for Section 160 proceedings
6 November 2023	Hearing of application for a stay

FACTORS RELEVANT TO EXERCISE OF DISCRETION

8 A court has a statutory discretion to defer, or even withhold, relief under Section 160 of the Planning and Development Act 2000. The existence of this discretion represents an important counterweight to the fact that there is no locus standi requirement under the section: an application may be brought by “ any person” irrespective of whether they are directly affected by the impugned development or not.

9 The factors relevant to the exercise of this statutory discretion have been authoritatively summarised by the Supreme Court as follows in Meath County Council v. Murray [2017] IESC 25, [2018] 1 I.R. 189, [2017] 2 I.L.R.M. 297 (at paragraph 92):

• “(i) the nature of the breach: ranging from minor, technical, and inconsequential up to material, significant and gross;

• (ii) the conduct of the infringer: his attitude to planning control and his engagement or lack thereof with that process:-

  • • acting in good faith, whilst important, will not necessarily excuse him from a s. 160 order;

  • • acting mala fides may presumptively subject him to such an order;

• (iii) the reason for the infringement: this may range from general mistake, through to indifference, and up to culpable disregard;

• (iv) the attitude of the planning authority: whilst important, this factor will not necessarily be decisive;

• (v) the public interest in upholding the integrity of the planning and development system;

• (vi) the public interest, such as:-

  • • employment for those beyond the individual transgressors; or

  • • the importance of the underlying structure/activity, for example, infrastructural facilities or services;

• (vii) the conduct and, if appropriate, personal circumstances of the applicant;

• (viii) the issue of delay, even within the statutory period, and of acquiescence;

• (ix) the personal circumstances of the respondent; and

• (x) the consequences of any such order, including the hardship and financial impact on the respondent and third parties.”

SECTION 160 AND THE PUBLIC INTEREST

10 The recent case law from the Supreme Court has emphasised that there is a strong public interest in upholding the integrity of the planning and development system. This aspect of the public interest has to be weighed in the balance against any countervailing public interest asserted such as, relevantly, any assertion that an unauthorised development involves the provision of an important infrastructural facility or service. Even then, the case law indicates that an asserted public interest of this type will not be sufficient, in and of itself, to justify a stay. Rather, the public interest will have to be combined with an additional discretionary factor such as, for example, the minor nature of the infringement or the bona fides of the developer. A stay will ordinarily only be granted where the purpose of same is to allow the developer time to regularise the status of the unauthorised development, i.e. by making an application for retention planning permission or by putting in place some measure to ensure compliance with an existing planning permission.

11 This point is illustrated by the judgment in Leen v. Aer Rianta [2003] IEHC 101, [2003] 4 I.R. 394. On the facts of that case, the High Court (McKechnie J.) declined to grant an immediate injunction restraining an ongoing breach of planning permission by the operator of Shannon Airport. The operator was in breach of a planning condition which required the provision of a suitable method for the treatment and disposal of the effluents to which the permitted development was likely to give rise. The purpose of the stay had been to allow time for the provision of a waste water treatment plant for the airport.

12 The exercise of the court's discretion was informed both by the “ devastating effect” which the closure of the international airport would have on the wider community and by the fact that the developer had acted at all times in a bona fide manner in that it was actively seeking a solution to the effluent disposal problem. The judgment refers, in particular, to the frequent and repeated contact by the developer with the local authority in this regard.

13 The High Court emphasised that, absent a finding that the developer had acted in a bona fide manner, it would have granted an immediate injunction. The position is summarised as follows at paragraph 37 of the reported judgment:

“This quite evidently is a most unsatisfactory position and if I had any doubt as to its bona fides I would have a considerable sense of unease at the appearance of this court allegedly being circumscribed in its duty to uphold and enforce the planning code. In the strongest terms could I say that if the attitude, behaviour or motive of the respondent in this case had been analogous with or comparable to the behaviour of the respondents in Curley v. Galway Corporation (Unreported, High Court, Kelly J., 11th December, 1998), I would have, irrespective of the consequences, granted the injunction sought. I see every reason why there must be equality of enforcement under this code: its very integrity so demands. Respect cannot be insisted upon from some and yet not demanded from others; otherwise, disrepute will follow and the entire regime will suffer.

However, it is also the situation that I must take into account the individual circumstances of each case and, to those, apply the law as I see it. Otherwise, the value which one is espousing, namely equality, would, paradoxically, be...