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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Heatons Ltd v Offaly County Council [2013] IEHC 261 (04 June 2013)
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Cite as: [2013] IEHC 261
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Judgment Title: Heatons Ltd v Offaly County Council Neutral Citation: [2013] IEHC 261 High Court Record Number: 2012 563 JR Date of Delivery: 04/06/2013 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 261 THE HIGH COURT [2012 No. 563 J.R.] BETWEEN HEATONS LIMITED APPLICANT AND
OFFALY COUNTY COUNCIL RESPONDENT JUDGMENT of Mr. Justice Hogan delivered on 4th June, 2013 1. May a planning authority make a reference to An Bord Pleanála pursuant to s. 5(4) of the Planning and Development Act 2000 ("the 2000 Act"), without notice to the relevant landowner in question and, if so, is a reference which asks whether the occupier of the premises is operating in compliance with relevant planning conditions a valid reference for this purpose? These are among the essential issues which arise in the present judicial review proceedings. 2. The applicants operate a department store at Unit H, Tullamore Retail Park, Cloncollog, Tullamore, County Offaly for which they have planning permission, albeit a permission which is subject to certain conditions. It is the nature of these conditions which assumes a particular importance so far as the present case is concerned. 3. Conditions No.2 and No. 16 of the relevant planning permission (PL2-01-651) provide as follows:-
16. Details of occupancy of each unit hereby approved and any subsequent change in occupancy shall be agreed with the planning authority..."
A prerequisite for all modem Heatons stores is the style of a floor plan which will accommodate an extensive modern showroom type layout. The Tullamore Retail Park Unit H affords the required showroom and space for the proposed Heatons Department Store and thus, it is submitted that Heatons will be an appropriate and exceptionally viable tenant in the retail park."
7. In the wake of that correspondence Heatons duly went into occupation of Unit H. Subsequently, however, a number of inspections carried out by planning officials revealed (apparently) that a substantial number of non-bulky household goods were on sale in a manner which the Council considered to be a contravention of the terms of the conditions contained in the planning permission. 8. On 3rd September 2009 the Council issued an enforcement notice requiring Heatons to comply with condition no. 6 of planning permission PL2/01/651. Specifically, the Council required Heatons to cease the sale of all non-bulky household items by 16th February 2009. The Council then commenced an enforcement prosecution against the company under s. 154 of the 2000 Act, but this prosecution was dismissed by the District Court on 11th March 2011. It would appear that the prosecution foundered principally by reason of an ambiguity contained in the original enforcement notice. The District Court did not, however, address the individual merits of the planning issue. 9. An inspection was subsequently carried out by an official from the planning department on 17th October, 2001. In the course of her very comprehensive inspection, the planning inspector surveyed both floors of the retail unit and concluded that the vast bulk of the items sold were non-bulky, including clothes, footwear, toys, sports items, and items for the home and kitchen. Within these categories there were, admittedly, some items which were bulky. Thus, for example, the sports section sold golf clubs and bicycles. 10. On the 17th April, 2012, the Council sent a letter to An Bord Pleanála requesting it to accept the enclosed reference pursuant to s. 5(4) of the 2000 Act. The letter was, in material part, in the following terms:
12. On 28th May 2012 Heatons' solicitors received a letter from the Board enclosing a copy of the reference which was stated to have been "provisionally validated pending review". Heatons were requested to make submissions in accordance with s. 129 of the 2000 Act. The Board's letter enclosed a copy of the earlier submissions of 25th May which had been received before the referral was issued to the parties. The Board indicated that the submission might be resubmitted as part of Heatons' response to the reference. 13. Heatons applied for leave to apply for judicial review in June 2012 and was granted leave to apply on several grounds. Although not formally a party to the proceedings, An Bord Pleanála agreed to abide by the outcome of the proceedings. It further indicated that it would take no steps to determine the reference pending the delivery of this judgment. Whether Heatons should be allowed to make arguments based on compliance with s. 127 of the 2000 Act 15. Not without hesitation I have come to the conclusion that such leave to amend should be granted. In this respect, I am influenced by two primary considerations. First, it is now plain in view of the decision of the Supreme Court in Keegan v. Garda Siochána Complaints Board [2012] IESC 29 that a more accommodating approach to the issue of the amendment of pleadings in judicial review is now mandated. In effect, the test enunciated by Fennelly J. requires the court to balance a number of sometimes competing considerations in order to weigh the balance of justice. These include factors such as whether the amendment will significantly enlarge the scope of the existing case, the strength of the argument, the reasons for the amendment, whether the amendment will be prejudicial or would affect third parties or otherwise compromise legal certainty. 16. Applying these principles, therefore, it may be observed that the proposed amendment will not greatly expand the scope of the existing case. The proposed amendment furthermore involves a pure point of law and nor will it involve a challenge to a different decision. The applicant had already maintained that the reference was invalid as a matter of law, albeit that it had not quite put its finger on this point. As Fennelly J. noted in Keegan these are factors pointing to the exercise of judicial discretion in favour of permitting the amendment. 17. Second, the proposed amendment not only raises a matter which is of importance, but is one which, for reasons I will set out presently, is fundamental to the fair and proper operation of the reference procedure itself. Put another way, if Heatons were not permitted to argue this issue, there is a serious risk that the fairness of the procedure operated by the Board pursuant to statute would be jeopardised. 18. The applicant also sought leave to argue that the reference was invalid because the Manager had not made the appropriate order pursuant to s. 155 of the Local Government Act 2001. I would decline to permit this amendment for three basic reasons. First, this point is a technical one which does not directly bear on the fairness of the planning process. Second, this amendment would, if permitted, significantly expand the scope of the case and would involve a new argument that a particular decision had not been taken. Third, the argument is not as strong as the argument based on non-compliance with s. 127(1)(d). 19. We may now proceed to consider the merits of the several grounds now advanced to challenge the reference itself. Whether the reference was a valid reference by reason of non-compliance with s. 127(1)(d)
22. The present case may usefully be contrasted with the decision of Quirke J. in O'Reilly Brothers (Wicklow) Ltd. v. An Bord Pleanála [2006] IEHC 363, [2008] 1 IR 187 where these issues were also explored. This was a case where Wicklow County Council had made a reference to the Board arising from the applicant's quarrying activities. 23. A large number of documents were submitted to the Board by the Council and these were accompanied by a letter from a senior planning official which expressly sought:
25. Quite apart from the fact that the Oireachtas has expressly stated in s. 127(2)(a) that such omissions are fatal to the validity of the reference, all of this was potentially prejudicial to the applicant. While the Board would naturally have been obliged by virtue of s. 129(1) to communicate the reference to the applicant (as, indeed, it did by letter of 28th May 2012), the latter would perforce have been place at a disadvantage in being obliged to respond in circumstances where the true basis of the reference was not explicitly stated. This prejudice might be especially marked given that s. 129(4) provides that, subject to the Board's right to hold an oral hearing under s. 134:-
27. All of this underscores the importance of compliance with s. 127(1)(d). As this it is part of a complex set of interlocking statutory provisions, failure to comply with the requirements of this sub-section has in itself consequences which frustrate the proper operation of the other provisions. The "no further comment" rule ins. 129(4) is thus accordingly predicated on the assumption that s. 127(1)(d) will have been complied with in the first instance and that the other party to the reference is simply responding to a reference which itself contains the "reasons, considerations and arguments" in sufficient detail to enable the other party fairly to respond. Is the reference capable of being regarded as a valid one for the purposes of s. 5(4) of the 2000 Act?
31. Section 3(1) of the 2000 Act defines "development" as meaning:
33. In the present case, therefore, the question of "development" amounts to this: could the use of retail premises for a purpose other than that (apparently) required by the terms of a planning permission amount to a material change in use and, hence, "development" in this sense? I have to say that I think that it can. 34. The classic test with regard to whether there has been a material change of use remains that posited by Barron J. in Galway County Council v. Lackagh Rock [1985] I.R. 120. One of the indicia of material change of use mentioned by him was whether the proposed development would be likely to require different conditions to those contained in the original planning permission. Judged by this standard, it is entirely possible that different conditions would have been attached had the retail unit been free to sell non bulky goods. 35. It is, moreover, clear from the authorities that a change of use can amount to a development. In McMahon v. Dublin Corporation [1997] 1 I.L.R.M. 227 the issue was whether the use of recently constructed houses in a housing development as holiday homes amounted to a change of use. Barron J. clearly thought that it could do so ([1997] 1 I.L.R.M. 227, 232):
37. The Board, however, declined to accept the reference on the ground that the company had commenced selling the food on the same day as the store opened, so that there had been no change of use in the non-planning sense of this term and, hence, no "development" for the purposes. McGuinness J. quashed this refusal to accept the reference as erroneous in law. It is implicit in this judgment that a change of use in breach of a planning condition could amount to "development" for the purposes of s. 5(4). For good measure the decisions in both McMahon and Palmerlane were approved by the Supreme Court in Grianán an Aileach Interpretative Centre Co. Ltd. v. Donegal County Council [2004] IESC 41, [2004] 2 IR 625. As Keane C.J. observed ([2004] 2 IR 625, 636-637) in that case:
Breach of fair procedures 40. If, however, the matter is approached from the perspective of legal rights, it cannot be said that the Council were obliged to give advance notice of the reference. Cases where advance notice of an application to an administrative body is required are rare and are generally confined to cases where the very fact of such an application is either potentially prejudicial from a reputational perspective or where the triggering of the administrative process would otherwise be potentially burdensome. Applications for an inquiry into the professional conduct of an individual represent a classic category of such cases, since the very fact that such an inquiry is being conducted, coupled with the stress, strain and burden involved in such inquiries all clearly indicate that fairness requires that the professional person be given an opportunity of responding to the potential complaint before an application is made to the professional body for an inquiry: see O'Ceallaigh v. An Bord Altranais [2000] 4 I.R. 42. 41. While it is true that the decision of the Board will form an integral part of the planning history of the site (sees. 5(5) of the 2000 Act and West Wood Club Ltd. v. An Bord Pleanála [2010] IESC 16), it cannot be said that the making of the reference will have immediate reputational implications for Heatons. In that respect, the case is entirely distinguishable from Dellway Ltd. v. National Asset Management Agency [2011] IESC 11 where the very act of transferring significant bank loans to NAMA carried with it the implication to outsiders (including other financial institutions) that the company could not service those loans, even if that implication was not necessarily warranted by a consideration of the objective facts. 42. The fundamental reason, however, why no such advance notice is required is because the merits of the application will adjudicated fairly by the Board in the careful manner specified by ss. 129 et seq. of the 2000 Act. Heatons would therefore get that opportunity to be heard before any decision adverse to its interests might possibly be taken. All of this re-inforces yet again the obligation on the part of the referring party to comply fully with the requirements of s. 127(1)(d), since absent such proper compliance the careful manner in which the procedural rights of all parties are preserved by the operation of these inter-locking statutory provisions might otherwise be compromised. Conclusions 44. First, not without hesitation, I will grant the applicant leave to extend time to raise the s. 127(1)(d) argument in the light of the more accommodating attitude taken to questions of extensions of time taken by the Supreme Court in Keegan v. Garda Siochána Complaints Board [2012] IESC 29. I will not grant leave to raise the argument based on s. 155 of the Local Government Act 2001. 45. I am arriving at this conclusion principally because I think that the form of the reference plainly did not comply with the requirements of s. 127(1)(d) of the 2000 Act in that the letter of reference did not "state in full the grounds of appeal or referral and the reasons, considerations and arguments on which they are based." Unlike O'Reilly Bros. - itself a marginal case - the reasons for the reference are left entirely to inference and potentially important material such as the Simon Clear correspondence have been omitted. 46. Nor is the precise ground of reference clear. One assumes this because this relates to Heatons' (alleged) occupation of the premises in breach of its planning conditions amounts to "development". But this is an objection which must be clearly stated, not least that the change of use here could only be material by reason of the specific condition which confined the retail premises principally to the sale of bulky goods. Were it not for such a condition, it is unlikely that any change of use of the store from bulky goods to non-bulky goods would amount to a change of use. 47. The issue raised is capable of amounting to a valid reference for all the reasons set out by Barron J. in McMahon and by McGuinness J. in Palmerlane and as approved by Keane C.J. in Grianán an Aileach. 48. There was no need to consult in advance prior to the making of the reference because Heatons' procedural rights would be fully protected by the Board in line with s. 129 of the 2000 Act. While it is true that the decision of the Board would affect the planning history of the site in the manner specified by s. 5(5) and had implications for the exercise by Heatons of the exercise of their property rights, it was largely an administrative step with no systemic reputational implications, unlike cases such as O'Ceallaigh and Dellway. But since, nevertheless, the exercise of these rights of these rights is premised on the existence of a reference which does in fact fully set out the grounds of reference, this makes compliance with s. 127(1)(d) all the more important and it is for this single reason that I will quash that reference.
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