The High Court has quashed An Bord Pleanála’s decision that a Dealz store at Fonthill Retail Park was a development requiring planning permission and was not exempted development. Mr Justice Cian Ferriter remitted the matter to the Board for reconsideration in accordance with the court’s findings.
The judicial review was brought by PKB Partnership, owner of Unit 3, which is occupied by Poundland Limited trading as Dealz. The dispute arose after the Board reviewed a South Dublin County Council declaration on the store’s sale of small-scale convenience goods.
A 1998 permission allowed a retail warehouse at the site without a condition limiting the types of goods sold. In 2015, the Council permitted subdivision of the unit. A condition attached to that permission restricted goods in the “extended retail warehouse unit” to bulky goods and excluded toys, footwear, sportswear and other clothing.
PKB argued that the 2015 restriction applied only to the newly created Unit 3A, not Unit 3. The court rejected that interpretation. Reading the permission alongside the planning application and its drawings, the judge found that the condition applied to both units. He said the word “extended” referred to the original unit being divided into two, not to a physical extension. He concluded the condition was enforceable and effective for both Unit 3 and Unit 3A.
However, the Board’s decision rested on a separate conclusion: that the 1998 retail-warehouse permission itself did not allow the sale of convenience goods. The Board relied on the definition of a retail warehouse in planning guidelines published in 2000, after the 1998 permission had been granted.
The judge found that reliance was legally wrong. The later guidelines could not be used to read a bulky-goods restriction into the earlier permission, which contained no such condition. He also found that the Board’s conclusion that the 2015 subdivision had not altered the permitted use was incorrect insofar as it assumed non-bulky goods were prohibited under both permissions.
The court did not decide whether the store’s use was ultimately development or exempted development. Although the 2015 condition applied to both units, the Board had not based its decision on a finding that the use breached that condition. Instead, its reasoning relied on an erroneous interpretation of the 1998 permission. The judge held that error went to the core of the decision and was not immaterial.
The court therefore granted certiorari quashing the Board’s 12 June 2018 decision and ordered the Board to reconsider the referral in light of the judgment. It did not make a fresh determination of the planning status of the store. A separate challenge by Poundland concerning fair procedures was heard alongside PKB’s case and addressed in a separate judgment.