The High Court dismissed Dunnes Stores’ judicial review of An Bord Pleanála’s retention permission for alterations at Ferrybank Shopping Centre, finding the proceedings were an abuse of process. Mr Justice Max Barrett refused the reliefs sought and expressly declined to consider the planning issues raised.
The judgment, delivered on 13 November 2015, concerned permission for five alterations at the centre in County Kilkenny, including a lift motor room enclosure, changes to a landscaped area, red glazing panels and roof screens. Dunnes, which owned the development’s anchor store, had no objection to the substance of those alterations, the court said.
Dunnes sought to quash An Bord Pleanála’s 1 December 2014 decision granting retention permission, as well as related declarations and other relief. Its challenge followed a long-running contractual dispute with Deerland Construction Limited and National Asset Loan Management Limited (NALM) over Dunnes’ obligation to fit out and open the store.
The judgment recounted that an arbitrator had found in 2011 that Dunnes was not entitled to terminate the development agreement and awarded Holtglen, a Deerland subsidiary, more than €20 million plus interest and costs. The High Court later dismissed Dunnes’ challenge to that award and granted relief to enforce it, including a judgment for just under €20.3 million. A separate fit-out arbitration was also under way.
Dunnes raised planning compliance concerns in 2012, about three years after practical completion. Justice Barrett noted that Dunnes’ architects had been involved during construction and that joint inspections had taken place without planning objections being raised. He found the evidence did not support the claim that planning concerns first came to light around September 2012. He accepted Deerland’s contention that the judicial review was intended to help Dunnes delay or avoid its contractual obligations, or to create a legal justification for its failure to meet them.
The court considered the legal principles governing abuse of process, including the need for caution before striking out proceedings. It concluded that the purpose it found for the judicial review was collateral to the remedies sought and unrelated to the public law purposes of those remedies. It therefore refused the reliefs, did not determine whether the alleged planning issues had merit, and dismissed the case as an abuse of process.