Treacy v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 22 January 2010
• Neutral Citation: [2010] IEHC 13
• Court: High Court
• Date: 22 January 2010

Treacy v Bord Pleanála

JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACTS 2000 - 2006

BETWEEN/

JAMES TREACY

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

WATERFORD COUNTY COUNCIL AND NOEL FRISBY CONSTRUCTION LTD AND TJX (IRELAND) LTD T/A AS TK MAXX

NOTICE PARTIES

[2010] IEHC 13

[No. 405 J.R./2009]

[No. 406 J.R./2009]

THE HIGH COURT

PLANNING & DEVELOPMENT LAW

Permission

Development - Exempted development - "Parent" permission - Uses permissible within parent permission - Change of use - Land leased - Retail warehouse - Whether intended use of development constituted change of use from that permitted - Whether respondent erred in not seeking to determine whether proposed use permitted pursuant to planning permission -Whether matters considered by respondent appropriate - Locus standi - Issue specific locus standi - Substantial grounds - Alleged failure to raise particular issue with decision maker - Estoppel - Whether applicant estopped by previous failure to raise certain matters before respondent - Whether applicant had substantial grounds - Whether matter planning issue to be determined or suitable for judicial review - Jurisdiction - Jurisdiction of respondent to deal with matter - Whether matter properly subject of judicial review - Planning and Development Act 2000 (No 30) ss 5, 34, 39, 50 and 130 - McNamara v An Bord Pleanála [1995] 2 ILRM 25, Lancefort v An Bord Pleanála (No 2) [1999] 2 IR 270, Ryanair v An Bord Pleanála [2004] IEHC 52 [2004] 2 IR 334, Quinlan v An Bord Pleanála [2009] IEHC 228 (Unrep, Dunne J, 13/5/2009), Harrington v An Bord Pleanála [2005] IEHC 344 [2006] 1 IR 388, Cicol v An Bord Pleanála [2008] IEHC 146 (Unrep, Irvine J, 8/5/2008), Harding v Cork County Council [2006] IEHC 295 (Unrep, Clarke J, 12/10/2006) and Grianán an Aileach Centre v Donegal County Council [2004] IESC 43 [2004] 2 IR 625 applied - Kenny v Dublin City Council [2009] IESC 19 (Unrep, Supreme Court, 5/3/2009), Ashbourne Holdings v An Bord Pleanála [2002] ILRM 321 and Boland v An Bord Pleanála [1996] 3 IR 435 considered -O'Connor v Dublin Corporation (Unrep, O'Neill J, 3/10/2000) distinguished - Relief refused (2009/405JR and 2009/406JR - MacMenamin J - 22/1/2010) [2010] IEHC 13

Treacy v An Bord Pleanála

PLANNING & DEVELOPMENT LAW

Retail planning guidelines

Development - Proposed use - Planning considerations - Parent permission - Respondent's jurisdiction - Retail warehouse park - Substantial grounds - Substantial interest - Locus standi - Failure to previously raise framework point - Estoppel - Whether development or exempted development - Whether change of user - Whether changes were "matters of detail" - Whether changes flowed from parent permission - Whether error of law going to jurisdiction - Whether substantial grounds for contending decision invalid - Whether applicant had substantial interest - Whether locus standi - McNamara v An Bord Pleanála [1995] 2 ILRM 25; Lancefort v An Bord Pleanála (No 2) [1999] 2 IR 270; Ryanair v An Bord Pleanála [2004] IEHC 52, [2004] 2 IR 334; Quinlan v An Bord Pleanála [2009] IEHC 1, (Unrep, Dunne J, 13/5/2009); Harrington v An Bord Pleanála [2005] IEHC 344, [2006] 1 IR 388; Cicol v An Bord Pleanála [2008] IEHC 146, (Unrep, Irvine J, 8/5/2008); Harding v Cork County Council [2006] IEHC 295, (Unrep, Clarke J, 12/10/2006); Grianán An Aileach Centre v Donegal County Council (No 2) [2004] IESC 43, [2004] 2 IR 625; Palmerlane v An Bord Pleanála [1999] 2 ILRM 514; Tormey v Ireland [1985] IR 289; Criminal Assets Bureau v Hunt [2003] 2 IR 168; Kenny v Dublin City Council [2009] IESC 19, (Unrep, SC, 5/3/2009); O'Connor v Dublin Corporation (Unrep, Ó Néill J, 3/10/2000); Ashbourne Holdings v An Bord Pleanála [2002] ILRM 321; Boland v An Bord Pleanála [1996] 3 IR 435 and White v Dublin Corporation [2004] IESC 35, [2004] 1 IR 545 considered - Planning and Development Act 2000 (No 30), ss 5, 34(5), 39(2) and 50 - Planning and Development (Strategic Infrastructure) Act 2006 (No ), s 13 - Application declined (2009/405 & 406JR - MacMenamin J - 22/1/2010) [2010] IEHC 13

Treacy v An Bord Pleanála

Facts the applicant sought, inter alia, an order of certiorari setting aside the refusal of the respondent to grant planning permission for use of buildings as retail warehouses on the basis that the type of retailing proposed to be carried out there constituted a material change of use which required further planning permission contrary to the decision of the local authority. Permission had been granted for the construction of buildings with a permitted use as retail warehouses. It concluded that the proposed user thereof would constitute a change of use as the retailing activity proposed to be carried on there did not come within the scope of the definition of activities of a retail warehouse as set out in the Retail Planning Guidelines; and furthermore that the change of use constituted development being a material change of use having regard to its character and its material external impacts (such as its possible impact on city centre retailing, traffic and parking) on the proper planning and sustainable development of the area.

Held by Mr. Justice Mac Menamin in refusing the relief sought that the substantial interest test introduced by section 50A of the Planning and Development Act 2000 did no more than copper fasten the rule that an applicant for judicial review could not rely on a ground that could have been, but was not raised during the course of the proceedings before the decision maker; Harrington v. An Bord Pleanla [2005] I.E.H.C. 344 and Harding v. Cork County Council [2006] IEHC 295 applied.

That the parent planning permission had to determine whether any subsidiary planning determination was one of "detail" and issues of "detail" could not be used as a process of metamorphosis as to the nature of the parent planning permission. The changes which had been envisaged by the applicant were not either ones of detail or ones which flowed "inexorably" from the parent planning permission. Any matter of detail had to perforce fall within the four walls of the parent grant of planning permission and could not denature it. That permission was for a "retail warehouse park", which definition referred back to the Retail Planning Guidelines which defined such a park. Once the provenance of the permission was established, subsequent conditions could not alter it fundamentally. The respondent did not disregard the relevant condition in the permission or invoke a general undefined jurisdiction, but rather it properly interpreted the planning permission by giving to the term "retail warehouse park" its proper lawful meaning as defined in the Retail Planning Guidelines to which condition 21 made reference. Accordingly, the respondent had no alternative but to conclude that the proposed uses the notice parties would constitute a change of use; Palmerlane v. An Bord Pleanla [1999] 2 I.L.R.M. 514 applied. Insofar as a legal issue arose, the respondent made a correct determination thereon, irrespective of whether the issues were characterised as matters of fact, law, or mixed fact and law.

Reporter: P.C.

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S5(3)

PLANNING & DEVELOPMENT ACT 2000 S3(1)

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50A

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

PLANNING & DEVELOPMENT ACT 2000 S50A(4)

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA (NO 1) 1995 2 ILRM 125

LANCEFORT LTD v BORD PLEANALA & ORS (NO 2) 1999 2 IR 270 1998 2 ILRM 401 1998/23/8916

RYANAIR LTD v BORD PLEANALA 2004 2 IR 334 2004/45/10252 2004 IEHC 52

QUINLAN v BORD PLEANALA & DUBLIN CITY COUNCIL UNREP DUNNE 13.5.2009 2009 IEHC 228

HARRINGTON v BORD PLEANALA & ORS 2006 1 IR 388 2005/29/5917 2005 IEHC 344

CICOL LTD v BORD PLEANALA UNREP IRVINE 8.5.2008 2008/7/1231 2008 IEHC 146

HARDING v CORK CO COUNCIL & BORD PLEANALA UNREP CLARKE 12.10.2006 2006/28/5912 2006 IEHC 295

PLANNING & DEVELOPMENT ACT 2000 S50A(3)(B)(i)

GRIANAN AN AILEACH INTERPRETATIVE CENTRE CO LTD v DONEGAL CO COUNCIL (NO 2) 2004 2 IR 625 2005 1 ILRM 106 2004/19/4446 2004 IESC 43

PALMERLANE LTD v BORD PLEANALA & DUBLIN CORP 1999 2 ILRM 514 2000/15/5828

TORMEY v IRELAND & AG 1985 IR 289

CRIMINAL ASSETS BUREAU v HUNT 2003 2 IR 168 2003/10/2095

KENNY v DUBLIN CITY COUNCIL UNREP SUPREME 5.3.2009 2009 IESC 19

O'CONNOR v DUBLIN CORP UNREP O'NEILL 3.10.2000 2000/14/5399

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL (NO 2) 2002 1 ILRM 321 2001/1/149

PLANNING & DEVELOPMENT ACT 2000 S39(2)

PLANNING & DEVELOPMENT ACT 2000 S34(5)

BOLAND v BORD PLEANALA 1996 3 IR 435

WHITE v DUBLIN CITY COUNCIL & ORS 2004 1 IR 545 2004 2 ILRM 509 2004/50/11423 2004 IESC 35

PLANNING & DEVELOPMENT ACT 2000 S5(2)(C)

PLANNING & DEVELOPMENT ACT 2000 S130

1 Mr. Justice John MacMenamin dated 22nd day of January, 2010.

2 1. Section 5 of the Planning and Development Act 2000 provides:

3 2 "5.-(1) If any question arises as to what, in any particular case, is or is not development or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.

4 (2) (a) Subject to paragraph (b), a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and...