The High Court dismissed James Treacy’s judicial review challenge to An Bord Pleanála’s rulings on proposed Mothercare and TK Maxx uses at Butlerstown Retail Park in Waterford.
In a judgment dated 22 January 2010, Mr Justice John MacMenamin held that the Board was entitled to conclude that the proposed uses differed from the retail warehouse use permitted for the park. He said the permissions’ requirement for Waterford County Council to agree proposed uses did not give the council a “carte blanche” to approve uses outside the parent permission for a retail warehouse park.
The dispute arose after the council issued declarations that the proposed uses did not amount to material changes of use. Frisby Construction, which owns a nearby shopping centre, appealed those declarations. On 23 February 2009, the Board decided that Mothercare’s intended use of Unit 4 and TK Maxx’s use of Units 1, 2 and 10, including their amalgamation into one unit, constituted development and was not exempted development.
Treacy argued that the council’s prior approvals set the limits of the Board’s review. The court found he had raised that issue before the Board and had a substantial interest in bringing the challenge. But it rejected the substance of his case. The judge said the Board had properly interpreted the permissions in the context of the retail planning guidelines, which define retail warehouses as specialising in bulky goods. The council’s approval power was limited to matters of detail within the scope of the permission, he said; it could not fundamentally change the permitted development.
The judgment noted that the Board considered the goods Mothercare proposed to sell, including clothing and other comparison goods, and the potential planning impacts. For TK Maxx, the council’s letter had restricted the range of goods, but the judge found that any issue about how the Board considered the letters could not affect the outcome once its legal interpretation was upheld.
The court also rejected TK Maxx’s complaints about notice and alleged prejudice. It had not made submissions to the Board despite being entitled to do so, the judgment said. The court did not grant planning permission or decide a new application; it declined the judicial review and left the Board’s determinations in place.