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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ogalas Ltd (t/a Homestore and more) -v- An Bord Pleanála [2014] IEHC 487 (23 October 2014)
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Cite as: [2014] IEHC 487
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Judgment Title: Ogalas Limited (t/a Homestore and more) -v- An Bord Pleanála Neutral Citation: [2014] IEHC 487 High Court Record Number: 2013 505 JR Date of Delivery: 23/10/2014 Court: High Court Composition of Court: Judgment by: Baker J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 487 THE HIGH COURT JUDICIAL REVIEW [2013 No. 505 J.R.] IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) BETWEEN OGALAS LIMITED (t/a HOMESTORE AND MORE) APPLICANT AND
AN BORD PLEANÁLA RESPONDENT AND
SLIGO COUNTY COUNCIL FIRST NAMED NOTICE PARTY AND
SLIGO CHAMBER OF COMMERCE SECOND NAMED NOTICE PARTY AND
PATRICK DOHERTY, ANSON LOGUE AND WILLIAM MOFFETT c/o THE JOINT RECEIVERS KEIRAN WALLACE AND PATRICK HORKAN THIRD NAMED NOTICE PARTIES JUDGMENT of Ms. Justice Baker delivered the 23rd day of October, 2014 1. The applicant operates a large store, of the type now commonly called a superstore, under the style of Homestore and More (“HSM”) from premises at Unit 5, Sligo Retail Park, Carrowroe, Sligo and has done so since 28th October, 2011. Sligo Retail Park is currently in receivership and the joint receivers, Kieran Wallace and Patrick Horkan are third named notice parties to this application for judicial review. Neither they nor the other notice parties took any active part in the application before me.2. Peart J. on 8th July, 2013 gave leave to apply for judicial review in the form of an order of certiorari quashing the decision of the respondent made on 23rd May, 2013 that the use by HMS of Unit 5 for the type and class of goods being sold from the store was properly characterised as development, and that that development was not exempted. Leave was also given for an ancillary order remitting the decision to the respondent and a stay was granted on the decision pending the final determination of this application. 3. The decision of the Board was made pursuant to s. 5 of the Planning and Development Act 2000. Subsections (1) and (4) provide as follows:-
(4) Notwithstanding subsection (1), a planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board.”
5. Sligo Retail Park operates under parent planning permission granted by Sligo County Council on 1st August, 2003, for a retail warehouse park incorporating 12 units, and containing a DIY store and garden centre, leisure unit and fast food restaurant. The initial planning permission for Unit 5 was for leisure use, but by order of 26th October, 2004, the parent permission was altered to substitute the use for Unit 5 as a retail warehouse and which permitted an increase in the mezzanine floor area of the unit. That planning permission, which issued on appeal by the Board, contained condition 18 which provides as follows:-
History of this reference 8. On 13th March, 2012, Sligo Chamber of Commerce referred the declaration to the Board for review in accordance with s. 5(3) of the Act. The Board appointed an inspector who furnished her report on 20th July, 2012. The Board issued its decision on 23rd May, 2013, wherein it held that:
Retail Planning Guidelines
Bulky goods - goods generally sold from retail warehouses where DIY goods or goods such as flat pack furniture are of such a size that they would normally be taken away by car and not being manageable by customers travelling by foot, cycle or bus or that large floor areas would be required to display them e.g. furniture in rooms sets, or not large individually but part of a collective purchase which would be bulky e.g. wallpaper, paint.” 11. Certain other definitions are relevant and the Guidelines define a retail park as a single development of at least three retail warehouses with associated car parking. Sligo Retail Park clearly comes within this definition. 12. Since the publishing of the Guidelines of 2000, further Guidelines were issued by the Department of the Environment in 2005 and more recently in 2012, Annexe 1 of which contains a glossary of terms in particular under A1.2 a glossary of types of retail goods. The relevant comparison goods identified under the subheading “bulky goods” is as follows:-
- repair and maintenance materials; - furniture and furnishings; - carpets and other floor coverings; - household appliances; - tools and equipment; - bulky nursery furniture and equipment including perambulators; - bulky pet products such as kennels and aquariums; - audio visual, photographic and information processing equipment; - catalogue shops and other bulky durables for recreation and leisure.” 13. Bulky goods under the Guidelines of 2000 are goods “generally sold from retail warehouses”. The definition in the Guidelines of 2012 adds to the definition that such goods would “normally” be taken away by car and imports an element of common experience or practice in relation to these types of goods, and another element relating to the need for large areas in a store for the display of such goods. It is clear that the goods do not need to be large individually, but they may be part of a collective and bulky purchase. Store layout 15. Certain of the items are bulky items, but equally items such as teapots, coffee pots, mops and buckets, laundry pegs, wall clocks, Christmas decorative figures are individually not bulky, but may be part of a collectively bulky purchase. The arguments 17. The respondents argue that the Board had sufficient information before it to make a decision, that the inspector did not make an error of interpretation, and the error, if there be such in her report, did not find its way into the decision of the Board, The role of the court
The role played by the Guidelines in the report of the inspector
22. It is not disputed by the parties that in the interpretative process must look to the Guideline expressly identified in the text of condition 18 itself i.e. the Guidelines of 2000. What is not agreed by the parties is the impact of the Guidelines of 2012. Section 28 of the Act of 2000 requires the Board to have regard to the guidelines when performing any of its functions under the Act “where applicable”. 23. In McEvoy v. Meath County Council [2003] 1 IR 208, Quirke J. considered the meaning of the phrase “have regard to” in the context of s. 27(1) of the Act of 2000 which required that a planning authority should have regard to any regional planning guidelines when making a development plan. Quirke J. stated the following at p. 223:-
25. Clarke J. adopted this view in Tristor Limited v. Minister for the Environment, Heritage and Local Government [2010] IEHC 397. He noted that the retail planning guidelines in that case were for entirely understandable reasons expressed in general terms, and said that a requirement that a deciding authority have regard to guidelines is not the same as requiring it to apply that guideline, and that it cannot be said that the Board is bound by the retail guidelines in coming to its decision. 26. It seems to me that s. 28 does not always require the Board to have regard to the most up to date Guidelines if other, or, as here, earlier, Guidelines are those applicable to the matter before it. The meaning of condition 18 is expressly limited to the Guidelines of 2000 and it is these which are relevant in the interpretation process. The requirement in s. 28 that the Board and, ipso facto, an inspector carrying out a Board appointed function, have regard to the Guidelines cannot have the effect that the express words of condition 18 are to be read as containing a reference to the later Guidelines. This does not mean that the Guidelines of 2012 cannot inform the interpretative process, and it seems to me that the effect of s.28 is to mandate the Board to consider them, and in particular to take note of any clarification or interpretative assistance offered by them. But if an application of the Guidelines of 2012 leads to a result which differs from that which would result from the Guidelines of 2000 the latter must prevail. To hold otherwise would mean that the express language of the condition could be displaced or replaced by a later administrative act of the Minister in issuing new Guidelines 27. The inspector in her report made express reference to the Guidelines of 2012 and makes no express mention of the Guidelines of 2000. She does, however, use the language of the Guidelines of 2000 and it seems to me that the Guidelines of 2012 do not form the only element in her decision. She did however accept the argument made in an opinion of counsel which was available to her that there was a certain lack of clarity in the Guidelines of 2000 which she said has been “recognised”, and that the Guidelines of 2012 had removed “the degree of flexibility” in the definition of bulky goods by removing express reference to goods which required large floor areas to display them or goods which while not large individually are part of a collective purchase that would be considered bulky. 28. Insofar as the inspector did come to her conclusion and recommendation based on what she perceived to be the less flexible test found in the Guidelines of 2012, she was applying, in my view, an incorrect or irrelevant test and the interpretative process had been guided primarily by the Guidelines of 2000 as these were the ones expressly identified as relevant in condition 18 itself. If the inspector’s decision or her recommendation were substantially based on a view that the Guidelines of 2012 imported a tightening of the definition of bulky goods, she would have fallen into error. I accept the argument of the applicant that such an error would be an error of law were it to find its way into the decision making process. The facts as identified by the inspector 30. Her conclusion was that Unit 5 was used for the sale of both bulky and non-bulky items of merchandise. She took the view in the light of her identification of certain non bulky items that the store did not “specialise” in the sale of bulky goods and she pointed to the fact that a large portion of the store was devoted to the sale of what she described as non-bulky products that can easily be carried away on foot. 31. I further note that the inspector goes on to compare such goods to those which could “easily be carried away on foot” and in my view, while the report lacks some clarity of expression, the inspector identified two ends of the spectrum, goods that were easily transported on foot and those necessitating car transport, and this was a proper approach. Of significance is the fact that the inspector took the view that while certain items on sale in store did require large display areas, the space requirements of the store arose largely from the volume of goods displayed and not the bulky nature of the individual items, and she identified that there were large areas in the store dedicated to the display of small items such as candles, dust pans and cooking utensils. 32. The applicant argues that the inspector misdirected herself in the test, and that her understanding of what constituted bulky goods was overly focused on the physical size of those goods and that she failed to have regard to the second and third part of the definition of bulky goods in Annexe 1 of the Guidelines of 2000, namely that bulky goods include goods the display of which required large floor areas, or which while not large individually are often part of a collective purchase which itself may be bulky. 33. It is argued by the applicant that the inspector wrongly linked the definition of bulky goods to those necessitating car transport, and that it was incorrect to treat the form of transport as central in the definition. I accept this argument and bulky goods as defined in the Guidelines of 2000 are goods which would normally be taken away by car, and not ones which of necessity should be taken away by car. 34. The applicant also argues that the inspector makes no reference whatsoever to the third element in the test identified in the Guidelines of 2000 namely individual items that would not be themselves bulky but which would be part of a collective purchase which would be bulky. No express reference was made to this test, although the inspector did say that the removal of this particular identifying feature by the Guidelines of 2012 tightened the scope and “removes ambiguity” as to the meaning of bulky goods. In placing emphasis on she describes as the “tightening” of the scope of bulky goods by the Guidelines of 2102, the inspector did fall into error. What she described as the less flexible and narrower definition in the Guidelines of 2012 ought not have informed her decision, as the exercise in which the inspector was engaged was an interpretation of planning condition 18, in which the Guidelines of 2000 were expressly incorporated. Thus, insofar as the inspector did take the view that goods had to be bulky, and disregarded the element of the definition which included non-bulky items which ordinarily formed part of the collective purchase, she fell into error and the error is one of law or interpretation. Did the inspector misunderstand the meaning of bulky goods? 36. I do not accept that the Retail Guidelines intended every item of household equipment or furnishing to qualify as bulky goods. Nor do I accept what is urged by counsel for the applicant that bulky goods must simply be read as items “needed for the house and garden”. This interpretation ignores the simple fact that the Guidelines, whether they be the Guidelines of 2000 or 2012, clearly envisage that the goods either be individually bulky, in the sense that they are bulky or large in size, or that they be sold normally as part of a bulky purchase. A candle could not be defined as a bulky good in either sense, although on a broad interpretation a candle is an item of equipment for the house or garden. Equally, not all furniture is bulky and furniture could be distinguished from a fixture by reference to the fact that a fixture is not movable. 37. Reference was made in the submissions to the Board that some of the goods sold in the IKEA store are goods which are not individually bulky. The inspector made reference to the IKEA comparison, and stated that unlike in IKEA the bulky items of furniture in Unit 5 are not themselves available for sale, while the IKEA store is primarily involved in the sale of bulky flat pack furniture. It seems to me that the inspector did fall into error in considering the IKEA comparator in that condition 18 leaves no scope for the sale of a given percentage of non-bulky goods such as in the IKEA profile. Condition 18 restricts the retail element to retail warehousing development only and restricts the range of goods to bulky household goods and goods generally sold in bulk. The restriction does not allow a percentage of non-bulky goods to be sold, and no such element of mixed retail goods is found in condition 18. Accordingly, it seems to me that the IKEA market hall does not offer any guidance in the interpretation of condition 18, and the inspector was incorrect to consider IKEA as an appropriate comparator. 38. The inspector then, it seems to me, did fall into error in her reliance on the Guidelines of 2012 and in failing to have proper regard to the fact that certain goods envisaged by condition 18 may not themselves be bulky but may be part of a bulky purchase. She also erroneously considered the IKEA comparator. However, she did not fall into error in her view that not all items of household equipment are to be considered bulky for the purpose of the interpretative process. The role of the inspector 40. Section 146(1) of the Act of 2000 allows the Board to assign a person to report in any matter and the inspector was appointed pursuant to that section. Subsection 2 requires the person so assigned to make a written report which shall include a recommendation. Of more significance is the fact that the Board is required to consider the report and the recommendations before determining the matter, but this does not always mean that the Board must be taken to have based its decision on the inspector’s report 41. The interplay between the Board and the inspector was examined by Ryan J. in Michael Cronin (Readymix) Limited v. An Bord Pleanála [2009] IEHC 553 and by Kelly J. in Cork City Council v. An Bord Pleanála [2006] IEHC 192. In particular, Kelly J. took the view that as the Board did not differ from the recommendations of the inspector, and where there was no dissent from her line of thought it was reasonable to conclude that the Board had adopted the reasoning of the inspector in arriving at its decision. 42. The Board is required to have regard to the report but, to borrow the phrase of Quirke J in McEvoy v. Meath County Council, it may not do so by slavishly following the report. As stated by O’Neill J. in Stack v. An Bord Pleanála (Unreported, High Court, 11th July, 2000):-
43. The test that I must apply in considering whether certiorari lies is well settled. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, Finlay C.J. at p. 72 identified the threshold which is required to be passed by an applicant in an application for judicial review on the grounds of unreasonableness:
The reasoning process of the Board 47. It is noteworthy, and was drawn to my attention by counsel for the respondent, that the draft decision of the Board had made reference to the Guidelines of 2012 and the definition of retail warehouse and bulky goods in those Guidelines rather than those of 2000. That reference was not found in the final report and was urged upon me that this shows the Board had engaged in a process of reasoning and had removed the reference to the Guidelines of 2012. I accept that proposition, and it seems to me that the Board did not slavishly follow the inspector’s report and was not influenced by the error which I have identified in that report, namely the view was taken by the inspector that she was to be guided in her understanding of goods which were truly characterised as bulky by the Guidelines of 2012 rather than, or as well as, those of 2000. Further, the Board did have regard to the second and third element of the definition in the Guidelines of 2000, namely that certain goods not large or bulky in themselves may form part of a collective purchase which is itself bulky, or that certain goods not individually bulky may generally be sold in bulk, or require large floor space for display.. 48. In my view, the Board did have regard to the inspector’s report but did not do so slavishly and the error which I have identified in the inspector’s report did not find its way into the decision of the Board and accordingly the decision of the Board was not impacted by that error. 49. The Board further identified as matters to which it had consideration, the submissions on file, including submissions in relation to the collective purchase of goods and did have regard to the class of goods normally purchased in bulk. In that regard, it must be noted that the applicant made very substantial submissions to the Board on 11th April, 2012, and supplemental submissions on 8th May, 2012, by way of a response to the observations submitted by Sligo County Council and the Board had these before it as part of its consideration. Part of that material included submissions “in relation to the collective purchase of goods”, and this is the precise phrase used in the Guidelines of 2000 which the inspector identified as having been removed or altered by the Guidelines of 2102. The Board in my view had regard to goods which are part of a collective purchase, and shows the procees by which it distinguished its view from that of the inspector. 50. In Evans v. An Bord Pleanála, Kearns J. pointed to the legislative requirement that the Board have regard to certain matters as permissive in nature and creating an obligation to consider something rather than requiring that the condition be followed or slavishly adhered to. The Board had regard to the Guidelines of 2000 and that was its primary function in the context of the reference to those Guidelines in condition 18. The planning permission is expressly referable to those Guidelines and not to any later guidelines. Equally, the Board had regard to the Guidelines of 2012 and the Board expressly made reference to these Guidelines in its final determination. These Guidelines were identified in the various submissions received by the Board and to which it expressly said it has regard. 51. There was before me the draft order, an incomplete direction, both of them undated, the complete direction signed on 13th May, 2013, and the final decision. It is clear from this sequence of documents and from the matters which were omitted in the later documents, that the Board did have regard to the Guidelines of 2012 and regarded them as not being determinative of its interpretative process. In this, the Board was correct and fell into no error in its process or error of interpretation. Possible impacts on town centre retailing: an irrelevant consideration? 53. The Guidelines, inter alia, aim to protect the viability and vitality of city and town centres by identifying particular classes of goods that may be sold in retail warehouses and shopping centres in out-of-town locations. They identify a general view that retail warehouses do not fit easily into town centres given their size requirements and the need for car parking etc. For that reason, and to weigh the different objectives and policy considerations and to avoid unnecessary damage to high street retail units in towns and cities, the Guidelines for retail and warehouse development limited these to the sale of bulky household goods. 54. Matters such as traffic and parking are planning concerns. According to the judgment of MacMenamin J. in Tracey v. An Bord Pleanála [2010] IEHC 13 the policy considerations identified are
Conclusion 57. In my view, the Board was entitled to take the view that it did and it had before it facts upon which it could reasonably come to the conclusion now sought to be challenged. The Board had evidence and submissions to which it had regard and indeed its process was shown. The Board is a decision making body and its process must be judged as having properly been made if it can be shown that it did engage with these facts and came to its decision based on these facts not by way of a slavish adherence to the material but as a result of a reasonable analysis. 58. I find that the inspector’s report did contain an interpretative error in that she incorrectly placed emphasis for the purposes of her analysis on the Guidelines of 2012. Those Guidelines were relevant only and insofar as that they do not differ from the Guidelines of 2000 which are specifically referred to in condition 18 sought to be analysed and interpreted by the Board. The Guidelines of 2012 are an interpretative tool but in any conflict between those of 2000 and those of 2012 the Guidelines of 2000 must prevail. The error of the inspector, however, in my view, did not find reflection in the Board’s decision and this fact shows the extent to which the Board engaged in a reasoned analysis of the fact before it, and the extent to which it correctly and properly weighed the evidence and submissions in coming to its reasoned conclusion. 59. The Board’s decision may be set aside if it is unreasonable or irrational, or was made following a mistake of law. It would be unreasonable had it been made without evidence and I find it not unreasonable in this sense. It would have been irrational had it been made following a blind acceptance of any one or other of all the material before it. It was not irrational in that sense. Had the Board failed to properly take account of the Guidelines of 2000 in the interpretative process, it would have fallen into an error of interpretation amenable to review by the court. The decision did not so fail. 60. I adopt the analysis of O’Neill J. in M&F Quirke & Sons v. An Bord Pleanála [2009] IEHC 426, with regard to the import of errors in an inspector’s report. At para. 9.9 he said the following:-
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