The High Court was minded to quash Dublin City Council’s decision to tell Taculla Limited that awnings outside its Harry’s on the Green premises could be used under a street furniture licence. Mr Justice Max Barrett held that the awnings remained unauthorised development and their use breached a licence condition requiring planning permission.
The judgment, delivered on 2 March 2017, concerned a judicial review brought by Dunnes Stores under sections 50 and 50A of the Planning and Development Act 2000. The challenge focused on a Council letter dated 22 January 2016, which said the awnings had been in place for more than seven years, did not require planning permission and complied with the street furniture licence.
Dunnes argued that the letter wrongly treated immunity from planning enforcement as permission to use the awnings. It said they obstructed the view of some of its shop window displays on South King Street and that it had been denied the opportunity to make submissions on a retention-permission application.
The judgment recounted earlier disputes over Harry’s street seating. Taculla had held a licence for tables and chairs on the public road, subject to a condition that front or side awnings could cover the licensed area only where planning permission had been granted. In 2015, Taculla admitted exceeding the permitted licensed area and placing associated temporary furnishings in breach of the licence. Its director also acknowledged that the arrangements had become routine and that large parasols had obscured some Dunnes windows. Taculla later undertook to the court not to place items on South King Street outside the terms of a licence or planning permission.
The judge said the court did not need to decide whether the awnings had been in place for more than seven years. Even if they were immune from enforcement action, that did not make them lawful or amount to planning permission. The court found that the licence condition did not allow their use without permission merely because enforcement proceedings could no longer be brought.
The Council’s letter was reviewable, the judge held, because it gave Taculla legal comfort to continue using the awnings with the licence. He rejected arguments that Dunnes’ case was an abuse of process or that its statutory right to appeal against a street furniture licence barred this challenge.
The court was minded to grant certiorari quashing the Council’s decision. It considered a separate declaration that the Council had erred in law unnecessary if that order was made. The judgment’s conclusion states that the court was “minded” to grant certiorari; it does not record a final order being made.