The High Court set aside interim orders that had stopped three Homesavers stores in Waterford city, Dungarvan and Tramore from trading outside the terms of their planning permissions. The ruling concerned whether the orders could properly have been made without notice; it did not decide whether the stores’ use was authorised.
Waterford City and County Council alleged that the stores were selling convenience goods and non-bulky comparison goods without the necessary planning permission. The council said the premises outside Waterford city centre had permission for retail warehousing but not those categories of goods, while the Dungarvan and Tramore premises had no retail permission. The respondents disputed the council’s position, arguing that the latter two sites might have established retail use and that archived planning files could help clarify the permitted use.
The council had obtained the orders without notice on 19 November 2020, under section 160 of the Planning and Development Act 2000. It argued that delay could harm lawful retailers during the Christmas trading period, which was already affected by Covid-19 restrictions. The respondents then applied to set the orders aside or vary them.
Justice Garrett Simons said an ex parte order under Order 103, rule 7 of the Rules of the Superior Courts required the court to be satisfied that the delay involved in giving notice might cause “irreparable or serious mischief”. He said that rule had not been brought to the court’s attention when the council sought the orders.
The judge found that the potential impact on other retailers during a short period in November fell short of the required test. He also cited the council’s delay in starting proceedings over the premises outside Waterford city centre: its inspection report was completed on 16 October, about four weeks before the application. The council had also issued warning letters allowing four weeks for submissions, and the judge said it could have sought an expedited hearing instead of proceeding without notice.
Although the council argued that its case against the Dungarvan and Tramore uses was strong, the judge said strength alone did not justify ex parte orders. He stressed that he was making no finding on whether the developments were unauthorised, as the respondents had not yet had a full opportunity to present evidence and submissions. The court set aside all three interim orders and scheduled the full section 160 hearing for 7 December 2020. It reserved the costs of the set-aside application pending that hearing.