THE HIGH COURT
JUDICIAL REVIEW
			1997 No. 343 JR
BETWEEN
PALMERLANE LIMITED
			APPLICANT
AND
AN BORD PLEANÁLA
			RESPONDENT
AND
THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN
			NOTICE PARTY
	
JUDGMENT of Mrs Justice McGuinness delivered the 28th day of January 1999.
	In these Judicial Review proceedings the Applicant seeks a number of reliefs in connection with an attempted reference to An Bord Pleanála pursuant to Section 5(1) of the Local Government (Planning and Development) Act, 1963 ("the 1963 Act").  The section in question, as amended by the Local Government (Planning and Development) Act, 1976, provides as follows:-
	"5(1) If any question arises as to what in any particular case is or is not development or exempted development the question shall be referred to and decided by the Board." (i.e. An Bord Pleanála).

	The Applicant is a limited company which inter alia is the owner and operator of premises at 32 Dame St in the city of Dublin.  These premises consist of a retail shop on the ground floor, storage facilities in the basement and a number of residential apartments on the upper floors.  Planning permission for all these uses was granted by the planning authority, Dublin Corporation, on the 14th April, 1994.  
	The retail shop on the premises is a convenience store of the type known as "Spar".  The Applicant company operates a number of "Spar" convenience stores in different locations.  In common with many other convenience stores, part of the business consists of the sale of hot food for consumption off the premises.  According to the Affidavit of Bernard McHugh, Chartered Town Planner, who has acted for the Applicant company in its dealings with the planning authority and with An Bord Pleanála, this aspect of the business consists of the sale of "small quantities of hot bread, hot chickens, sausage rolls and similar type matters from a delicatessen counter within the retail premises".  Mr McHugh examined the position with the Applicant's architect and deposes that the business of the sale of hot food "amounted to no more than 2% of the total floor area of the building and that in terms of the turnover amounted to less than 2% of the sales of the premises."   It is clear from the documentary evidence that this type of sale of hot food had been a part of the shop's business since its commencement pursuant to the 1994 planning permission.  
	On 6th March, 1996 the planning authority (the Notice Party) issued a warning notice pursuant to Section 26 of the Local Government (Planning and Development) Act, 1976 as amended.  This notice referred to an unauthorised use of part of the shop premises for the sale of take-away hot food and required that this unauthorised use should cease forthwith.  If the unauthorised use was continued proceedings under Section 26 of the 1976 Act might be brought against the Applicant.   The penalties for conviction under Section 26 were set out at the foot of the notice.  
	The managing director of the Applicant company contacted Mr McHugh, who entered into correspondence with the Notice Party in which he argued that the sale of hot food in the Dame Street shop was on a small scale and merely incidental to the general business of the shop.  On the 25th September, 1996 Mr McHugh wrote to the planning department of Dublin Corporation.  He acknowledged that the definition of the word "shop" as set out in Article 8 of the Local Government (Planning and Development) Regulations 1994 did not include use for the sale of hot food for consumption off the premises but submitted that the situation was covered by Article 11(4)(a) of the same Regulations which provides "A use which is ordinarily incidental to any use specified in part IV of the Second Schedule is not excluded from that use as an incident thereto merely by reason of its being specified in the said Part of the Said Schedule as a separate use."  	
 
	The Planning Department did not agree with Mr McHugh's submission and by letter dated 29th October, 1996 they refused to withdraw the warning notice.  For the purposes of the present proceedings there is no necessity for this Court to go into the detail of the case made by Mr McHugh to the Notice Party, still less to endeavour to decide the issue between them.  It is sufficient to say that in my view the Applicant company has at least a stateable case on the matter.  It is also a fact observable by any member of the general public that the vast majority of convenience stores operate a minor hot food business of the same nature as that operated by the Applicant company, so that the question in regard to its permissibility as part of a "shop" as defined in the planning regulations will in all probability arise in many other cases.  
	As the Applicant, as advised by Mr McHugh, perceived matters, a dispute had arisen between it and the Notice Party as to whether the sale of hot food in the Dame Street shop was a development as defined in the planning legislation.  Mr McHugh formed the opinion that a dispute had arisen in the case as to whether the alleged unauthorised use was development and/or exempted development and that this matter was required to be determined by An Bord Pleanála pursuant to Section 5 of the 1963 Act.  On the 4th February, 1997, on the instructions of the Applicant, Mr McHugh submitted a reference under Section 5 to An Bord Pleanála, together with the requisite fee.  He put forward to the Board a similar argument in regard to incidental or ancillary use as he had already put to Dublin Corporation.  His letter of reference was quite lengthy and detailed, and included references to various aspects of planning law.  It is exhibited with his Affidavit; again it is not necessary here to go into the merits of his argument.  On the 16th April, 1997 An Bord Pleanála replied seeking further information in regard to details of the hot food business.  On the 29th April, 1997 Mr McHugh forwarded the information as requested by the Board.  Further correspondence ensued in regard to whether the matter was proper for a reference under Section 5 of the 1963 Act and the question was referred for decision to the Board itself.  On 1st August, 1997 the Respondent  wrote to Mr McHugh as follows: 

	"Re:  Use of the limited part of shop, 32 Dame Street, for sale of hot food for consumption off the premises.  
	Dear Sirs
		I have been asked by An Bord Pleanála to refer to the above matter and to your response of 12th June, 1997 to the Board's letter of 30th May, 1997.
		The Board has considered the points made by you in relation to whether a question has arisen in this particular case as to what is or is not development or exempted development.  The Board has concluded that your submissions to the Board constitute a request for confirmation that the limited use of part of the shop for the sale of hot food for consumption off the premises (which use commenced when use as a shop commenced) is authorised by the planning permission granted for the shop.  The Board has no power under Section 5 of the Local Government (Planning and Development) Act, 1963 or otherwise to decide whether or not a particular development has been carried out in accordance with a particular permission.  The Board's powers under Section 5 of the Local Government (Planning and Development) Act, 1963 are confined to determining questions which arise and are referred to the Board as to what in any particular case is or is not development or exempted development.  In the circumstances of this case, it is considered that there is no valid reference before the Board for determination under Section 5 of the 1963 Act.
		Accordingly, your fee of £150 will be returned to you within the next few days."
The letter was signed by Ms Elizabeth Dolan Senior Executive Officer, on behalf of the Board.
	On the 25th September, 1997 the Applicant issued the present Judicial Review proceedings.  The Applicant seeks the following reliefs:

	(i)	A Declaration that the submission of the Applicant dated the 4th day of February, 1997, ref. no. 29 SRF 0807 constitutes a reference for the purposes of Section 5 of the Local Government (Planning and Development) Act, 1963; 
	(ii)	An Order of Mandamus directing the Respondents to determine the reference submitted in accordance with Section 5 of the Local Government (Planning and Development) Act, 1963, ref. no. 29 SRF 0807, in accordance with the obligations placed upon them by the aforesaid section.
	(iii)	An Order of Certiorari quashing the decision of the Respondent dated the 1st day of August, 1997 to refuse to consider the reference made on the 4th day of February, 1997 and holding that the said submission did not constitute a reference for the purposes of Section 5 of the Local Government (Planning and Development) Act, 1963.
	
	The Applicant relies, inter alia, on the following grounds:
	(9)	The Respondent erred in law in holding that the submission dated the 4th day of February, 1997 was not a reference for the purposes of Section 5 of the Local Government (Planning and Development) Act, 1963 in view of the nature of the issue which the aforesaid submission raised.
	(10)	The Respondent erred in law in holding that a use which is authorised either wholly or partly under a planning permission granted under part IV of the Local Government (Planning and Development) Act, 1963 or relates to the said permission cannot give rise to a reference under Section 5 of the Local Government (Planning and Development) Act, 1963.  
	(11)	The Applicant submitted a valid reference under Section 5 of the Local Government (Planning and Development) Act, 1963 and was entitled to have the matter determined by An Bord Pleanála having regard to the issues which were raised within that reference.  
	(12)	The Respondent made errors of law and fact in holding that the retail unit was wholly dependent on the planning permission granted and that no pre-existing retail use had existed on the site. The issue of whether the ancillary use of part of a retail outlet for the sale of hot food for consumption off the premises, whether or not that use has been authorised by a specific grant of planning permission, is a proper issue for determination by the Board under Section 5 of the Local Government (Planning and Development) Act, 1963.  
	(13)	The decision of the Respondent is unreasonable and contrary to plain reason and common sense.  
	(14)	The Respondent failed to have any regard to matters that it ought to have regard to and took into account matters which it ought not to have regard to and in the circumstances, the decision is ultra vires the power of the Respondent.

	It appears from internal Board documentation exhibited in the Affidavit sworn by Mr McHugh on the 26th September, 1997 that the main, and indeed really the only, difficulty that the Board had with accepting and dealing with the Applicant's Section 5 reference was that the sale of hot food had commenced at the same time as the opening of the shop.  The Board had before it a memorandum dated the 8th July, 1997 from Mr Padraic Thornton, Senior Inspector of the Board.  Mr Thornton referred to the submissions made by Mr McHugh and stated: 

	"Mr McHugh's submission states that An Bord Pleanála is being asked to decide whether in this particular case the limited use of part of this shop for the sale of hot food for consumption off the premises is development or exempted development.  It is accepted that the existing use commenced when the use as a shop commenced.  It is not argued that use as a shop is not development or exempted development.  It seems to me accordingly that the Board is being asked to decide whether or not the existing use is in accordance with the planning permission.  This would require considering issues such as whether permission granted for a "shop" on 8th June, 1994 without any conditions relating to the sale of hot food for consumption off the premises would allow for the "shop" to be used either wholly or partly for such use.  I do not consider that the Board has a function in deciding this issue.  If the element of sale of hot food for consumption off the premises had been introduced subsequent to the premises being used as a shop without this use the Board would clearly have a function.  The Board does not however, deal with theoretical situations.  There clearly seems to have been a material change of use when the existing use commenced.  No argument to the contrary has been submitted.  I am not aware of any other "development" or activity or action or works which might be the subject matter of the reference."

	This is confirmed by the Affidavit of Elizabeth Dolan, Senior Administrative Officer, on behalf of the Respondent.  In that Affidavit she refers by way of contrast to a previous reference determined by the Board on 17th November, 1995 and exhibits the determination of the Board in that case.  The case in question involved the sale of hot food for consumption off the premises by a supermarket in Cork.  As was pointed out by Miss Dolan, in that case the user of a portion of the premises for the sale of hot food was introduced as a new use into a pre-existing and established use as supermarket premises.  In the event the Board determined in the Cork case that the use of the shop for the sale of hot food for consumption off the premises on a limited scale did not constitute a material change of use and was therefore not a development.  
	The question at issue between the Applicant and the Respondent here, therefore, appears to be very much a net point - whether the fact that the sale of hot food in the Applicant's shop commenced on the same date as the opening of the business pursuant to the 1994 planning permission disentitles the Applicant from seeking a reference pursuant to Section 5 of the 1963 Act.
	In his submissions to the Court, Senior Counsel for the Applicant, Mr Connolly, while drawing attention to a number of previous cases, relied largely on the decision of the learned Barron J. in McMahon -v- Dublin Corporation [1997] 1 ILRM 227.  In that case, as is set out in the head note, the Plaintiffs who were owners of a number of homes in a new housing development took part in a scheme which involved tax advantages where houses and maisonettes were used as holiday homes.  The homes were thereafter available for short term lettings through a management company providing holiday and other short term lettings.  In 1987 a complaint was made to the Defendants that this was not a permitted use.  Condition 7 which was attached to the planning permission for the housing development was that "no part of the proposed houses or apartments shall be used for non-residential purposes such as offices, surgeries or consulting rooms."  The reason stated for this condition was "to prevent unauthorised development and in the interest of residential amenity".  The matter was referred by the Defendant, who regarded the use of the homes as holiday homes as being a change of use, to An Bord Pleanála who ruled pursuant to Section 5 of the Local Government (Planning and Development) Act, 1963 that the use was a development.  The Plaintiffs appealed against the decision of An Bord Pleanála.  The learned Barron J. in the event upheld the decision of An Bord Pleanála.
	During the case the question arose as to whether the use as holiday homes could be a material change of use, and thus a development, in the situation where in fact this was the first and only use to which the houses had ever been put.
	At page 232 of the report the learned Barron J. dealt with this question as follows: 
	"It has been submitted that there can be no change of use since the use of these homes was the first use to which they had been put.  I cannot accept such an argument.  If the houses and maisonettes were not used as authorised by the planning permission but used in a different manner then there must have been a change of use.  Such a change of use was a material change and as such was unauthorised development.  I would uphold the decision of An Bord Pleanála given on the reference to it under Section 5 of the Local Government (Planning and Development) Act, 1963."
	
	While McMahon -v- Dublin Corporation was decided by Barron J. while still a judge of the High Court and is therefore strictly speaking persuasive rather than binding authority, it is an authority for which I would have the greatest respect and I have no difficulty in following it.  It must, I think, also be noted that in the McMahon case An Bord accepted and determined a reference under Section 5 despite the fact that the user in question dated from the time the houses were built.  This was indeed effectively a decision that the use of the houses as holiday homes and temporary lettings was not in accordance with the relevant planning permission.
	I find it somewhat difficult to distinguish the factual position in the instant case from that in the McMahon case.  The decision of An Bord Pleanála in the instant case also, in my view, creates the somewhat anomalous and unreasonable situation that if the Applicant were to select another of its "Spar" shops, where the position was that the premises had been in use as a retail shop under an earlier planning permission and the company had subsequently embarked on the limited sale of hot food for consumption off the premises, the Applicant could presumably successfully have sought a determination of a reference pursuant to Section 5 of the 1963 Act.  I appreciate that each determination under Section 5 deals only with the particular case on its own facts.  However, in a situation where a very large number of convenience stores operate in the same way as the shop in question in the instant case, it seems to me to be in accordance with reason and common sense that questions such as this should be determined on a consistent basis by those with expertise in the planning area, namely An Bord Pleanála.
	The alternative appears to be to have one set of stores (who started to sell hot food from the date of the grant of planning permission) dealt with in a series of prosecutions in different District Courts, while another set of stores, who might well belong to the same chain, would be dealt with by means of references under Section 5 to An Bord Pleanála.
	Bearing these considerations in mind, and following the authority of the McMahon case, I will grant the following reliefs as sought by the Applicant:
(i)	A Declaration that the submission of the Applicant dated the 4th day of February, 1997, ref. no. 29 SRF 0807, constitutes a reference for the purposes of Section 5 of the Local Government (Planning and Development) Act, 1963;
(ii)	An Order of Certiorari quashing the decision of the Respondent dated the 1st day of August, 1997 to refuse to consider the reference made on the 4th day of February, 1997 and holding that the said submission did not constitute a reference for the purposes of Section 5 of the Local Government (Planning and Development) Act, 1963.  
	
	I will not, at this point, make the Order of Mandamus sought by the Applicant as I feel sure that, following on the granting of the other reliefs, an Order of Mandamus will not be necessary.