The High Court extended the time for Mr Price to challenge an An Bord Pleanála decision, finding that the Board had failed to notify the retailer. But the court dismissed the substantive judicial review, leaving in place the finding that changing a former car sales premises in Athy to a shop was not exempt development.
The judgment, delivered by Ms Justice Siobhán Phelan on 29 June 2023, concerned a premises at Gallowshill, Athy, owned by Supermacs Ireland Limited and occupied by Corajio Unlimited Company, trading as Mr Price Branded Bargains.
Athy Town Council granted permission in 2004 for a car sales showroom and related facilities. A condition required construction in accordance with submitted drawings. The court noted that the building as constructed was more symmetrical and had a larger footprint than the approved plans, and found that the condition had not been complied with.
Mr Price sought a declaration that the change from car sales to a shop was exempt under planning regulations. An Bord Pleanála decided in May 2020 that the change was development and was not exempt. It accepted that the change generally fell within an exemption for changing from motor vehicle sales to a shop, but found that the building’s departures from the approved plans were material and that the exemption was restricted by the breach of the permission’s condition.
The judicial review was brought outside the statutory eight-week period. Mr Price said it first learned of the decision in February 2021, after the planning authority threatened enforcement action. The judge found, on the balance of probabilities, that the Board had not served notice as required. She granted an extension up to 19 April 2021, when the application was brought, citing the failure to notify, the absence of identified actual prejudice and the steps taken after Mr Price learned of the decision.
On the substance, the court held that the breach of the construction condition meant the existing use was unauthorised, so the Class 14(a) exemption could not apply to the subsequent change of use. The court also rejected the argument that the Board had failed to address a question about rectifying the building, finding that its reasoning answered the issue. It said the Board had an adequate evidential basis to consider traffic and pedestrian safety when assessing whether the change of use was material. The Board had not relied on traffic as a separate ground for disapplying the exemption.
The court refused the substantive relief and dismissed the proceedings. The judgment said the ruling did not prevent Mr Price from applying for planning permission; it meant only that the exemption did not apply.