The High Court quashed Offaly County Council’s reference to An Bord Pleanála concerning whether Heatons Limited was complying with planning conditions at its store in Tullamore, finding that the referral did not explain its grounds and supporting reasons as required by law.
In a judgment delivered on 4 June 2013, Mr Justice Hogan held that the Council’s April 2012 letter asked whether Heatons was complying with conditions restricting the goods sold at Unit H, Tullamore Retail Park. But the letter gave no reasons or arguments for the referral, and the Council had not enclosed potentially important correspondence about the proposed store. The court said the basis of the referral was left to inference, which could disadvantage Heatons when making submissions to the Board.
The dispute arose from planning permissions that limited the goods sold in Unit H principally to bulky household goods, DIY items and automotive products. After inspections, the Council considered that a substantial number of non-bulky goods were being sold. It issued an enforcement notice in 2009 and later prosecuted Heatons. The District Court dismissed that prosecution in March 2011, apparently because of ambiguity in the notice; it did not decide the underlying planning issue.
The High Court permitted Heatons to raise its argument that the referral breached section 127(1)(d) of the Planning and Development Act 2000. It refused permission to add a separate argument concerning an order under section 155 of the Local Government Act 2001. Under section 127, the referral had to state its grounds and the reasons, considerations and arguments supporting them; a referral that failed to comply was invalid.
The court also addressed the scope of a section 5(4) referral. It held that a use in breach of a planning condition could amount to a material change of use and therefore potentially constitute “development” for the Board to determine. The Council’s question was not invalid simply because it concerned compliance with planning conditions. However, the referral still had to set out its factual basis and issues clearly.
Heatons argued that the Council should have consulted it before making the referral. The court rejected that ground: advance notice was not legally required because the Board’s process would give Heatons an opportunity to be heard before an adverse decision. The court quashed the referral on the separate ground that it failed to comply with section 127(1)(d). The judgment did not determine whether Heatons had breached its planning conditions; An Bord Pleanála had agreed to take no steps on the referral pending the judgment.