Waterford City & County Council v Centz Retail Holdings Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 16 December 2020
• Neutral Citation: [2020] IEHC 634
• Docket Number: 2020 No. 262 MCA
• Court: High Court
• Date: 16 December 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 634

Garrett Simons

2020 No. 262 MCA

THE HIGH COURT

Planning and development – Unauthorised retail development – Unauthorised signage – Applicant seeking to restrain the carrying out of unauthorised retail development – Whether the granting of relief ought to be stayed pending the determination of applications for retention planning permission

Facts: The applicant, Waterford City and County Council (the planning authority), applied to the High Court for relief pursuant to s. 160 of the Planning and Development Act 2000. The planning authority sought to restrain what it alleged was the carrying out of unauthorised retail development at three premises within its functional area. The three premises were located at (i) a site outside Waterford city centre; (ii) Dungarvan; and (iii) Tramore, respectively. The planning authority also sought the removal of what it alleged were unauthorised signage or advertisements (as defined).

Held by Simons J that there was no defence to the proceedings in respect of the premises at Tramore and Dungarvan. Moreover, the courted declined in the exercise of its discretion to stay the granting of relief pending the determination of the two applications for retention planning permission. Simons J held that it would be contrary to the public interest in ensuring compliance with the planning legislation to allow a commercial entity, who had shown a reckless disregard for the statutory requirement to obtain planning permission prior to the commencement of development, to continue to trade and profit in the interim. Accordingly, in respect of those two premises, Simons J held that orders would be made restraining the respondents, Centz Retail Holdings Ltd, Centz Stores 7 Ltd, Ice Cosec Service Ltd, Mr Maniar and Centz Stores 8 Ltd, their servants or agents or any person having notice of the making of the order, from carrying out any retail use at the two identified sites. Simons J held that these orders would have immediate effect from midnight. Simons J held that all unauthorised signage and/or advertisement structures were to be removed within 72 hours. Simons J found that the position in relation to the third premises (Waterford) was more complicated. Simons J held that there was a limited form of retail use allowed, but this excluded the use for the sale of convenience goods (including non-durable household goods and food), clothing and footwear. Simons J found that the evidence established that this limitation had been breached. Simons J held that an order would be made restraining the use of the premises for the sale of those goods. Simons J held that all unauthorised signage and/or advertisement structures were to be removed within 72 hours.

Simons J requested the parties to correspond with each other in relation to the appropriate costs order. Simons J held that the correspondence should also address the question of the costs of the application to set aside the interim orders made. Simons J held that, in default of agreement, the parties were to file written submissions in relation to costs.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 16 December 2020

INTRODUCTION

1 This matter comes before the High Court by way of an application for relief pursuant to section 160 of the Planning and Development Act 2000 (“ the PDA 2000”). 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 are unauthorised signage or advertisements (as defined).

2 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.

3 The respondents now concede that, in respect of two of the three premises, there is no extant planning permission which would allow for retail use. It is accepted, therefore, that “unauthorised development” (as defined under the PDA 2000) has been carried out at these premises (Tramore and Dungarvan). The respondents have, belatedly, submitted applications for retention planning permission. These applications for retention planning permission were invalidated by the planning authority because the applications did not fully comply with certain requirements of the Planning and Development Regulations. A second round of applications were submitted this week.

4 The position in respect of the third of the premises is different. The respondents maintain that they are entitled under planning permission to carry out a range of retail activity at the Waterford premises, but accept that the sale of “convenience goods” is precluded. The respondents dispute the planning authority's interpretation of the relevant planning permission, and, in particular, the attempt to preclude the sale of non-bulky goods.

5 The first issue to be addressed in this judgment is the correct interpretation of the planning permission in respect of the Waterford premises. The resolution of this issue turns, largely, on whether it is legitimate to have regard to Ministerial guidelines on retail planning in interpreting the planning permission.

6 The second issue to be addressed is whether this court should refuse relief and/or place a stay on its orders in the exercise of its discretion. The respondents have sought to identify what they say are a series of factors which militate against the grant of immediate relief under section 160 of the PDA 2000.

7 For the sake of completeness, it should be noted that interim orders which had been obtained on an ex parte basis in these proceedings were discharged for the reasons set out in a written judgment of 27 November 2020, Waterford County Council v. Centz Retail Holdings Ltd [2020] IEHC 540.

WATERFORD PREMISES / PLANNING PERMISSION

8 The dispute between the parties in respect of the Waterford premises centres on the interpretation of a planning permission granted on 6 April 2000 (Reg. Ref. 99/515) (“ the 2000 planning permission”). More specifically, the dispute centres on the meaning to be attributed to the term “retail warehousing” as employed under that planning permission. Before turning to discuss that issue, however, it is necessary first to explain that when the proceedings were initially instituted, the allegation was that the respondents were in breach of a different planning permission. Specifically, it was alleged that retail activity was being carried out in breach of a later planning permission (Reg. Ref. 11/531) (“ the 2011 planning permission”). The nature of the retail use permitted under the 2011 planning permission had been restricted as follows by Condition No. 3 thereof.

“3. The development permitted herein shall be used solely as a retail warehouse as defined in the Retail Planning Guidelines 2005. Reason: In order to comply with the Waterford City Development Plan Retail Policy and having regards to the application site's high profile location, in the interest of proper planning and sustainable development of the area.”

9 It is now conceded by the planning authority that the 2011 planning permission had not actually been implemented. The above planning condition does not, therefore, bite. The 2011 planning permission has since expired in accordance with the provisions of section 40 of the PDA 2000.

10 The planning authority have applied to amend the originating notice of motion so as to refer to the correct planning permission, i.e. the 2000 planning permission. Whereas the respondents had, initially, indicated in their replying affidavits an intention to oppose this amendment, counsel confirmed at the hearing before me that there is now no objection to the amendment. Accordingly, I will make a formal order allowing the amendment to the originating notice of motion. The implications, if any, of this for legal costs may be addressed by the parties by way of written submission.

11 Returning to the wording of the 2000 planning permission, the permitted development is described as follows as per the grant issued by the planning authority on 6 April 2000.

“In pursuance of the powers conferred upon them by the above-mentioned Acts, Waterford Corporation have by order dated 06/04/2000 granted permission to the above-named, for the development of land, namely:

Alterations & change of use from bowling alley/Fun World centre to retail warehousing & extension to existing unit for retail warehousing with relevant site development works at Inner Ring Road, Cork Road, Waterford.

Subject to the 13 conditions set out in the schedule attached.”

12 Condition No. 1 of the planning permission reads as follows.

1. “The use of the building for wholesale/retail warehousing shall be limited to...