Waterford City and County Council v Centz retail Holdings Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 27 November 2020
• Neutral Citation: [2020] IEHC 540
• Docket Number: 2020 No. 262 MCA
• Court: High Court
• Date: 27 November 2020

IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

AND IN THE MATTER OF AN APPLICATION

BETWEEN

WATERFORD CITY AND COUNTY COUNCIL

APPLICANT

AND

CENTZ RETAIL HOLDINGS LIMITED

CENTZ STORES 7 LIMITED

ICE COSEC SERVICE LIMITED

NAEEM MANIAR

CENTZ STORES 8 LIMITED

RESPONDENTS

[2020] IEHC 540

Garrett Simons

2020 No. 262 MCA

THE HIGH COURT

JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 27 November 2020

INTRODUCTION

1 This matter came before the court on 25 November 2020 by way of an application to set aside or vary orders which had been made on an ex parte basis the previous week (19 November 2020). The orders had been made pursuant to section 160 of the Planning and Development Act 2000 (“ the PDA 2000”). The effect of the orders was to restrain the use of certain premises for retail purposes. The principal issue for determination on the “set aside” application concerned the circumstances in which it is appropriate to grant injunctive relief under section 160 on an ex parte basis.

2 At the conclusion of the hearing on 25 November 2020, I made an order setting aside the ex parte orders. I delivered an ex tempore ruling on that date outlining a summary of the reasons for my decision. The ruling had been delivered on an ex tempore basis because of the urgency of the matter from the parties' perspective. The parties were informed that a fuller statement of reasons would be provided subsequently in a written judgment.

PROCEDURAL HISTORY

3 Waterford City and County Council (“ the planning authority”) seeks to restrain what it alleges is the carrying out of unauthorised retail development at three premises within its functional area. The three premises are located at (i) a site outside Waterford city centre; (ii) Dungarvan; and (iii) Tramore, respectively. The planning authority also seeks the removal of what it alleges is unauthorised signage or advertisements.

4 The respondents operate retail stores under the style and title of “Homesavers”. The gravamen of the planning authority's complaint is that the respondents are engaged in the sale of convenience goods, including food, household cleaning products and pet supplies; and non-bulky comparison goods, such as home accessories and toys. It is said that this represents an unauthorised use in that none of the three premises has the benefit of a planning permission which would allow for such a retail use. Whereas the premises outside Waterford city centre has planning permission for a form of retail use, i.e. retail warehousing, it is said that the permission does not allow for the sale of convenience or non-bulky goods. The premises at Dungarvan and Tramore are said not to have a retail planning permission of any sort.

5 An official of the planning authority inspected the premises outside Waterford city centre on 16 October 2020 and prepared a report on the same date. A statutory warning letter, pursuant to section 152 of the PDA 2000, issued on 19 October 2020. This indicated that submissions could be made to the planning authority within a period of four weeks.

6 The two other premises were inspected on 4 November 2020, and, again, statutory warning letters were issued.

7 On 19 November 2020, the planning authority made an ex parte application to the High Court (Meenan J.) pursuant to section 160 of the PDA 2000. Orders were made on that date which, in brief, restrained the respondents from using the three premises other than in accordance with the terms and/or conditions of the relevant planning permissions relating to those premises.

8 The application had been grounded on an affidavit of an executive planner in the planning authority's enforcement unit. The asserted urgency for the application is summarised as follows at paragraph 24 of the affidavit.

“24. One of the principal aims of the Retail Planning Guidelines 2005, which are specifically referred to under Condition 3 of the permissions (and also the Retail Planning Guidelines 2012) is to protect the vitality and viability of town centres. The Applicant, as a planning authority, was and is obliged to have regard to these statutory Guidelines. The operation, in breach of the planning laws, of the Homesavers' retail business at this location and at the other two locations mentioned below will undermine the vitality and viability of retail businesses in Waterford City centre, which are already suffering very significant adverse effects as a result of COVID restrictions on trade. The unauthorised retailing from these premises as the Christmas retailing period ( sic) has the potential to have a detrimental impact on existing lawfully operated retail business in the city centre. […]”

9 The following day (20 November 2020), the respondents were granted liberty to apply, by way of motion on notice, for an order lifting or varying the injunctions. The respondents duly issued a motion seeking to set aside or vary the interim orders. That motion came on for hearing before me on 25 November 2020.

INTERIM RELIEF UNDER SECTION 160 OF THE PDA 2000

10 Section 160 of the PDA 2000 allows for wide ranging relief in the case of unauthorised development. The grant of relief under the section is often described as the grant of a “planning injunction”. This shorthand is useful, but it should be noted that the jurisdiction conferred on the court is statutory rather than equitable in nature. (See Mahon v. Butler [1997] 3 I.R. 369).

11 The procedure for the making of an application for a planning injunction is prescribed as follows under subsections 160(3) and (4).

(3) (a) An application to the High Court or the Circuit Court for an order under this section shall be by motion and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate.

(b) Subject to section 161, the order by which an application under this section is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

(4) (a) Rules of court may provide for an order under this section to be made against a person whose identity is unknown.

(b) Any relevant rules of Court made in respect of section 27 (inserted by section 19 of the Act of 1992) of the Act of 1976 shall apply to this section and shall be construed to that effect.

12 As appears, the legislation envisages that an application for relief will ordinarily be made on notice to the developer, i.e. the person who it is alleged is carrying out the unauthorised development. The proceedings are instituted by way of originating notice of motion. Relevantly, however, it is expressly provided that the court may make such interim order (if any) as it considers appropriate.

13 The test to be applied in deciding whether to make an interim order is prescribed under Order 103, rule 7 of the Rules of the Superior Courts as follows.

7. Pending the determination of an application under [Section 160]*, the Court on the application of the applicant or the respondent, by interlocutory order, (or if satisfied that delay might entail irreparable or serious mischief, by interim order on application ex parte) may make any order in the nature of an injunction; and for the detention, preservation or inspection of any property or thing; and for all or any of the purposes aforesaid may authorise any person to enter upon or into any land or building; and for all or any of the purposes aforesaid may authorise any sample to be taken or any observations to be made or experiment to be tried, which it may consider appropriate necessary or expedient.

* As per subsection 160(4)(b) of the PDA 2000, the rule is to be construed as applying to section 160.

14 As appears, the test for the grant of an interim order on an ex parte application is that the court must be satisfied that delay might entail irreparable or serious mischief. This rule does not appear to have been brought to the High Court's attention on the ex parte application. I will return to consider the significance of this under the next heading below.

15 One issue which has not yet been fully explored in detail in the case law is whether it is appropriate to require a planning authority to give an undertaking as to damages as a quid pro quo for the grant of an interim or interlocutory injunction under section 160. (cf. Donegal County Council v. P Bonar Plant Hire Ltd [2020] IEHC 349 where an undertaking for damages was required of a planning authority).

16 The availability of an undertaking as to damages plays a significant role in the test governing the grant of interim and interlocutory injunctions in private law proceedings. The principles governing interlocutory injunctions have recently been restated by the Supreme Court in Merck Sharp & Dohme Corporation v. Clonmel Healthcare Ltd [2019] IESC 65 (“ Merck”). Relevantly, the Supreme Court held that if there is a fair issue to be tried (and the case will probably proceed to trial), then the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice. The most important element in that balance is, in most cases, the question of the adequacy of damages.

17 The Supreme Court emphasised, however, that any application for an interlocutory injunction should be approached with a recognition of the essential flexibility of the remedy and of the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined at trial.

18 Of course, the adequacy of damages will only ever be a relevant consideration in assessing the balance of justice where damages are capable of being recovered in the context of the proceedings, whether by the plaintiff as an award of compensatory damages or by the defendant pursuant to an...