The High Court has ruled that Cork County Council’s 2011 modification to a local area plan for land owned by Tesco Ireland in Charleville was a nullity because it breached statutory procedures. Mr Justice Michael Peart said Tesco was entitled to an order of certiorari, but deferred deciding the order’s form until hearing from counsel.
The dispute concerned about 3.14 hectares beside the N20 and Love Lane. Under the previous local area plan the land was zoned for residential development. Tesco’s application for a shopping centre was refused in 2006 because it would materially contravene that zoning.
During preparation of the 2011–2017 Kanturk Electoral Area Local Area Plan, a draft proposed town-centre and neighbourhood-centre uses on the site, including large convenience retail. After elected members proposed restoring residential zoning across the entire site, Tesco objected. It proposed instead that 1.4 hectares be reserved as a long-term opportunity for convenience retail, subject to conditions.
On 19 July 2011, the elected members adopted a further modification: the northern part of the land would remain residential, while 1.4 hectares would be reserved for a supermarket. The objective linked development to both significant population growth and commencement of the M20 phase that included the Charleville bypass. The council made the plan subject to that change by formal resolution on 25 July.
Tesco argued that the motorway condition was a new and substantial restriction that had not been included in the published proposed alteration, so it had no opportunity to make submissions on it. The council disputed that, saying the M20, traffic and access had featured throughout the planning process and that the change made the link more explicit. These were opposing submissions, not findings by the court.
The judge held that the July change was not a minor modification permitted without another consultation stage under section 20(3) of the Planning and Development Act 2000. In his view, a change of this substance would have required publication and an opportunity for submissions if included as a material alteration. He also agreed that the modification increased the area of land zoned for a purpose, contrary to section 20(3)(q)(ii), because it reserved land previously zoned residential for retail use.
The court therefore found the council’s decision to be a nullity and granted Tesco’s entitlement to certiorari. It did not decide Tesco’s separate claims that the decision was irrational or inadequately reasoned, finding those issues unnecessary to resolve. The judgment also records that Tesco no longer pursued its constitutional challenge to the legislation. The precise form of the certiorari order remained for the court to settle after hearing counsel.