The High Court transferred a judicial review challenge to planning permission for a large factory outlet centre near Dundalk into its Commercial List, finding that the development’s commercial aspects and the risk of delay made it suitable for the list.
In a judgment delivered on 14 June 2005, Mr Justice Kelly gave reasons for an order he had made on 27 May. Coverfield Developments Limited, which owns the lands, had sought the transfer under Order 63A, rule 1(g) of the Rules of the Superior Courts. The applicants opposed it; An Bord Pleanála took a neutral position on the transfer, and the other notice parties did not participate in that hearing.
The judicial review sought leave to challenge An Bord Pleanála’s decision of 25 February 2005 to grant permission for a development at Dowdallshill, Dundalk, County Louth. The plans included 81 retail units, a mall, snack bars, a playground, a crèche and parking for 1,120 cars and 20 coaches. The applicants relied on 28 grounds. The judgment addressed only which court list should hear the case; it did not decide whether leave should be granted or the planning permission quashed.
Coverfield’s director gave uncontroverted evidence that delay might prevent the development from proceeding. The judgment records that the proposed land sale was conditional on planning permission and valued at about €7 million, while construction costs were expected to be at least €35 million. The director also said a rival factory outlet proposal in Banbridge had been approved and that a proposal connected with applicant Donal Kinsella’s Dunleer site was under appeal.
The applicants argued that their case concerned the legality of a statutory planning decision, not a commercial dispute, and relied on observations in a recent Supreme Court case about admission to the Commercial List. They also raised concerns about fairness and the rules’ costs provisions; the fairness assertion was withdrawn and apologised for, while the costs point was not seriously argued.
Justice Kelly said rule 1(g) allowed public law appeals and judicial reviews into the list where their commercial or other aspects made that appropriate. He distinguished this statutory judicial review from the constitutional action discussed in the Supreme Court case and concluded the evidence showed substantial commercial aspects. The court had listed the case for trial on 28 June, with time allowed for written legal submissions. The judgment records that An Bord Pleanála and the notice party intended to oppose leave but not to file evidence for that opposition.