Irish Hardware Association v. South Dublin County Council [2000] IEHC 135 (19th July, 2000)

1.00 The Applicant in these proceedings is seeking, by way of Judicial Review, to challenge the decision of the Respondent to grant Planning Permission (Ref No s98A-0161) in respect of the proposed development of “Retail Warehousing” at Liffey Valley Town Centre, Fonthill Road, Clondalkin in West Dublin. Leave to apply by way of Judicial Review was granted by the Order of Mr. Justice Barr on the 11th of October, 1999. The Applicant sought an:-

“Order of Certiorari to quash the Decision of the Respondent, Register Reference Number s98A/0161, granting planning permission to the Notice Party for a revision and alteration to previously approved permission Register Reference Number s97A/0523 to include inter alia, one retail warehouse of approximately 9,560 sq. meters in area”

1.01 In the statement of grounds the Applicant sets forth thirteen grounds upon which the relief is sought. The Respondent in legal submissions dated 20th June 2000 has fairly identified three principal issues as the basis of the Applicants challenge to its decision, namely:-

(2) the planning authority should have exercised its discretion to require that the developer readvertise the application for permission, specifying the modifications proposed in the response to additional information, principally the construction of one large undivided unit instead of one structure divided into 5 units.

(3) the planning officer’s report reveals that the town planning authority (a) did not take into consideration relevant matters such as the 1982 and 1998 General Policy Directives and the Draft Retail Planning Guidelines of 1998 and (b) granted permission for reasons that are not rational reasons.”

2.01 In 1993 the Notice Party applied for a mixed development to develop the “Quarryvale” site to be known as “Liffey Valley”. The proposed development included an hotel, conference and leisure facilities, public house, betting office, drive-through take away restaurant, petrol filling station, motor sales outlet, computer centre, leisure centre, swimming pool, recreation hall, civic offices, cinema, retail and ancillary spaces, other ancillary units and car parking.

2.02 The retail units amounted to 23,444 sq. meters in aggregate. The application was accompanied by an Environmental Impact Statement which assessed the impact of the proposed development by reference to a number of criteria specified in the regulations and included assessment of the impact on retail in the area and traffic impact studies.

2.04 The Notice Party, between 1995 and 1999 lodged a number of further applications to amend the permission given. The relevant one insofar as these proceedings are concerned was a second such application made in 1997 Ref s97A/0523 which sought to change the use of the South Eastern corner of the site from industrial to retail and sought permission for some 15 Retail Warehousing units with a total floor area of some 33,911 sq. meters.

2.06 On the 18th March 1998 the application which is the subject matter of these proceedings was originally made. The original application was for 5 Retail Warehousing units amounting to some 12,165 sq. meters which units were to be arranged in a terrace under one roof so to speak. The Respondent sought further information from the Applicant on the 12th of May 1998. It is clear from that request for information that the Respondent was unhappy with the application as it stood. It was not until the 23rd March 1999, more than 10 months later, that a “reply” was given to that request for information. The reply, on any view, proposed a radical alteration to the former plan in that instead of 5 Retail Warehouse units there was to be “giant” unit of some 9,650 sq. meters with, on one side of it a garden centre of some 12,100 sq. meters and, on the other side a dry goods store of some 1,912 sq. meters.

3.01 It is submitted that the permission granted was for a development materially different from that which was applied for and that the matter was dealt with privately between the developer and the planning authority without any input from the public and even persons such as the Applicant failed to notice what had happened. The Applicant submitted that this is entirely understandable because the notice originally published in respect of the application referred to 5 Retail Warehousing units. This latter submission must, however, be wrong because, as appears from paragraph 11 of the Affidavit of Jim Goulding, Secretary General of the Applicant, sworn on the 16th July 1999, it was not until the summer of 1998 that the Applicant first took steps to check planning applications. The application which is the subject matter of these proceedings was advertised in March of 1998.

3.02 It is submitted on behalf of the Applicant that the question in the present case is whether or not the modified application which was submitted by the Respondent for, what the Applicant describes as, a single “category killer” store in conjunction with a garden centre and dry goods store was a modified application which raised different planning issues as compared with the original application such that to grant permission for the modified development would be to deprive those who should have been consulted on the change of development of the opportunity of such consultation. The Applicant submits that it is incontrovertible that very large single retail warehouses of this nature do raise fundamentally different planning concerns to a development which would have consisted of 5 separate retail warehouse units. This, the Applicant submits, is evident from both the Draft Retail Planning Guidelines of 1998 and from the decision of An Bord Pleanala in relation to the application for permission for such store in Crowcastle, Co. Dublin.

3.03 The Applicant cites article 17(2) of the Local Government (Planning and Development) Regulations 1994(S.I. 86 of 1994) which provides, inter alia, that where it appears to a planning authority that any notice, because of its content or for any other reason, is misleading or inadequate for the information of the public the planning authority shall require the Applicant to give such further notice in such manner and in such terms as they may specify and to submit to them such evidence as they may specify in relation to compliance with any such requirement. It was argued that in this case, once the planning authority was prepared to accept the significantly modified application submitted by the Respondent on the 23rd of March 1999 it was and is patently obvious that the original notice which referred to 5 individual retail warehouse units was now misleading and/or inadequate for the information of the public.

3.04 The Applicant further submitted that there was a failure on the part of the Notice Party to comply with the obligation to furnish elevation drawings under articles 19 and 23 of the 1994 Regulations hereinbefore mentioned and that that failure was a failure to comply with a mandatory requirement. It emerged, however, that elevation drawings were, in fact, furnished and the only argument in relation thereto related to the adequacy thereof in that drawings of the northern elevation did not show the modification of the building from 5 units to 1 unit.

3.05 It was further argued that Respondent failed to take into account the relevant criteria which are identified both in the 1998 Shopping Directive and in the Draft Retail Planning Guidelines and that it wrongly and irrationally relied on an assumption that the planning issues which arose on the instant application had already been evaluated and determined in the 1997 planning permission. It was not disputed that the use of this site as a retail park had been established by the 1997 permission. It was argued, however, that the issue was whether a single large retail warehouse, twice the size permitted under the Retail Planning Guidelines, was or was not in conformity with proper planning and development of the area. This was not an issue which had been raised in the 1997 permission because there had been no application for such a large retail warehouse at the time.

4.01 The Respondent began by submitting that the decision of the Supreme Court in O’Keeffe -v- An Bord Pleanala (1993) 1I.R. 39, the Court must consider all applications to quash decisions of decision making bodies, and specifically planning authorities, in accordance with principles enunciated by Finley, C. J. at page 71 of the report as follows:-

“The Court cannot interfere with a decision of an Administrative decision making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it.”

“Under the provisions of the Planning Acts the legislator has unequivocally and firmly placed question of planning, questions of balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning decisions. The Court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters”.

“I am satisfied that in order for an Applicant for Judicial Review to satisfy a Court that the decision making authority has acted irrationally in the sense that I have outlined above so that the Court can intervene and quash its decision, it is necessary that the Applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant material which would support its decision”

4.02 In answer to the argument that the permission granted was materially different from that originally applied for, the Respondent argued that a planning authority may impose conditions which modify a development (Section 26 of 1963 Act), call for amended plans or particulars modifying the proposed development, under Article 35 of the 1994 Regulations hereandbefore referred to, or request further information (including maps and plans) under Article 33 of the same regulations. The Respondent cited the dicta of Mr. Justice Henchy in the State (Abenglen Properties) -v- Dublin Corporation (1984) I.R.381 at page 405 where he said:-

“Finally, I do not accede to the submission that the permission granted is so different from that applied for that it does not amount to a adjudication of Abenglen’s application. Unquestionably, the permission granted differed substantially from that applied for - particularly in terms of height of buildings, reduction of amount of office space, increase in the amount of residential space and variation in the ratio of office space to the total area to be built on. But in, my opinion, the variation was valid for it was effected by the imposition of conditions which the Respondents were authorised by Section 26 of the Act of 1963 to impose for permitted purposes....”

4.03 It was submitted that the modified plans had been on the public file since their receipt and available for inspection by any interested person. Thus, there was no exclusion of the public from making representations in respect thereof.

4.04 In response to the argument that the Respondent should have required readvertisement the Respondent submitted, inter alia, that it is clear from the Affidavit of Enda Conway that the planning authority took the view that (a) the principal of a retail warehouse park of approximately 15,000 sq. meters of floor space had already been approved on this part of the Liffey Valley site by planning permission 97A/0523, (b) that the Consultative Draft Retail Planning Guidelines did not mean that large single retail warehouses should not be permitted in the context of modern shopping centre developments such as Liffey Valley with a highly developed road infrastructure and, (c) that it was not necessary to require that further notice of the application be given.

4.05 On the argument that the Respondent failed to take relevant matters into consideration the Respondents argue that the uncontroverted evidence of Mr. Conway was that the substance of government policy underlining the provisions of the various planning directives were taken into account as were the provisions of the Consultative Draft Retail Policy Guidelines of 1998.

4.06 Counsel for the Respondent said that it was quite clear from the report of the County Planner that he was aware of the draft guidelines; he quoted therefrom and expressed the view that the proposed application did not come under the ambit thereof.

4.07 Counsel for the Respondent further submitted that it was clear from the planning officer’s report that the particular distinctions in the instant application were considered by him and taken into account. Having taken the same into account he was of the view that those distinctions were not of such significance that he should refuse the application.

4.08 The Respondent finally referred to the conflicting views expressed in the respective Affidavits of Mr. Manahan, the town planner, and of Enda Conway and Anne Mulcrone. It was argued that the mere fact that the former disagreed with the last two persons mentioned is not grounds to quash the decision.

5.01 The Notice Party first argued that the shopping directive of 1998 (SI193 of 1998) did not apply to the instant application having regard to the fact that the same was made three months prior to the coming into operation of the said directive relying upon the decision of Geoghegan J. in O’Flynn Construction Limited -v- An Bord Pleanala (unreported High Court 12th November 1999). They further submitted that the 1982 directive did not apply as the same was revoked by the 1998 directive. Nevertheless, it was argued, that the planning officer indicated that the decision of the Respondent was informed by a consideration of the criteria referred to at paragraph 3 of the 1998 directive.

5.02 The Notice Party disputed the Applicant’s contention relating to the Draft Retail Planning Guidelines. It rejected the assumption that the Respondent was obliged to take the same into consideration. Apart from the fact that they were Draft Guidelines it was pointed out that the same were not published until April 1999, subsequent to both the lodging of the application on the 18th March 1998 and to the lodging of the additional information and modified plans on the 23rd March 1999. Notwithstanding the status of the Guidelines, the Respondent was entitled to take them into account insofar as they represented a study undertaken by a reputable firm of Planning Consultants.

6.02 Rather than go through the thirteen individual grounds identified in the Applicant’s statement Required to Ground Application, I intend to give my findings under the headings identified in the Applicant’s outlined legal submissions dated the 23rd June, 2000.

6.04 I accept the submissions of the Respondent and the Notice Party to the effect that a Planning Authority can grant permission for something substantially different than that originally applied for. This was recognised by Henchy J in his judgment in The Sta te (Abenglen) Properties -v- Dublin Corporation (1984) IR 381.

6.07 While I am not convinced that the failure to furnish elevation drawings would be fatal, it appears that the same were, in fact, furnished. The only argument in relation thereto relates to the adequacy thereof in that drawings of the Northern elevation did not show the modification of the building from five units to one unit. I reject the foregoing ground of objection.

6.08 “The Planning Authority Failed to take Account of the Relevant Criteria which are Identified in both the 1998 Shopping Directive and in the Draft Retail Planning Guidelines and Wrongly and Irrationally Relied on an Assumption that the Planning Issues which arose on the Instant Application had already been Evaluated and Determined in the 1997 Planning Permission.”

6.09 Whether or not the Directives of 1982 or 1998 or either of them were in force, I am satisfied that the Planning Officer took into account the substance of Government Policy underlining the provisions of those Directives and took into account the Draft Retail Policy Guidelines of 1998. It seems to me that the Applicant is seeking to use this application to attack the 1997 Planning Permission. Indeed, Mr Manahan in his replying Affidavit sworn on the 4th February, 2000 argues at paragraphs 6, 7 and 8 thereof that the said permission is “void and of no legal effect”. In spite of the foregoing, that permission remains in force and has not been lawfully attacked. I accept the proposition that the 1997 permission is a precedent permission in respect of the site and that the planning officer was entitled to treat it in a manner in which he did in that context.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Irish Hardware Association v. South Dublin County Council [2000] IEHC 135 (19th July, 2000) URL: http://www.bailii.org/ie/cases/IEHC/2000/135.html Cite as: [2000] IEHC 135

High Court of Ireland Decisions

Irish Hardware Association v. South Dublin County Council [2000] IEHC 135 (19th July, 2000)