High court reporters
The owners of a premises housing a large Dealz discount store in west Dublin have won a High Court challenge to moves under the planning laws which threatened its closure.
The store in Fonthill Retail Park, Clondalkin, near the Liffey Valley Shopping Centre, is operated by British retail chain Poundland which leases the premises from the park owners PKB Partnership.
Mr Justice Cian Ferriter ruled that An Bord Pleanála must reconsider its refusal to declare that the use of the premises as a Dealz store is exempted development - meaning it does not require planning permission.
The unit housing Dealz was built under a 1998 planning permission permitting "retail warehouse development".
In 2015, PKB applied for and was granted permission to sub-divide the unit subject to the condition that the range of goods to be sold in the extended retail warehouse unit would be limited solely to "bulky goods" and could not include the sale of toys, footwear, sportswear or other clothing.
In 2015 Dealz took up occupation of one of the new sub-divided units.
However, in 2016, South Dublin Co Council decided to declare that the change of use from the former retail warehouse to use as a discount store for the sale of non-bulky convenience goods was development and therefore needed planning permission.
The council then brought enforcement proceedings for alleged unauthorised development of the unit. PKB sought a formal ruling as to whether it was exempted development.
The council ruled it was not exempted and PKB then asked An Bord Pleanála for a ruling on the mater. The board agreed with the council.
PKB brought its High Court challenge over the decision claiming, among other things, the board erred in determining that a “retail warehouse” was not a “shop”.
It also argued the board had regard to an irrelevant consideration in interpreting the proper meaning and scope of the term “retail warehouse”.
The board opposed the challenge.
In a judgment, Mr Justice Ferriter quashed the decision and sent the matter back to the board for fresh consideration.
He ruled that the original 1998 planning permission did not entail a restriction on retail warehouse use equivalent to that now found in the various iterations of the retail planning guidelines.
However, he also found the condition relating to the sale of "bulky goods" in the 2015 permission was enforceable and effective and applied to the Dealz unit and to the other subdivided part. He said it was now up to the board to apply these findings to the facts of case.
In a separate case, Poundland itself challenged the board over its refusal to invite Poundland, as a third party, to make submissions when it was deciding the "exempted development" issued.
Mr Justice Ferriter, who heard both and the PKB and Poundland proceedings together, ruled Poundland had not made out any basis for quashing the decision and there was no breach of its rights to fair procedures. He said Poundland could now seek to make submissions when the board is reconsidering the matter.