In Ogalas Limited (t/a Homestore and More) v An Bord Pleanála [2014] IEHC 487 (23 October 2014) the High Court clarified that planning permission compliance conditions do not necessarily move with a change in the underlying Ministerial Guidelines but rather must be viewed in light of the Guidelines applying at the time.

Facts

The applicant operates a large superstore at Unit 5 of Sligo Retail Park. It sought to challenge by way of judicial review, a decision by An Bord Pleanála (the Board) that a change of its use of Unit 5 constituted "development" and was not exempted development.

Condition 18 of the relevant planning permission identified the range of goods permitted to be sold in Unit 5:

"The retail element of the proposed development shall be restricted to retail warehousing development only.  In this regard, the range of goods to be sold in the retail units shall be restricted to bulky household goods and goods generally sold in bulk (as defined in Annexe 1 of the Retail Planning Guidelines for Planning Authorities issued by the Department of the Environment and Local Government in December 2000), including carpets and floor coverings, furniture, electrical goods, computers and DIY items, including garden equipment."

The Board determined that the retailing activity carried out by the applicant included the sale of substantial amounts of non-bulky goods and that in the circumstances this retailing activity constituted a change of use from that contemplated by condition 18 of the planning permission. The Board took the view that the use of Unit 5 constituted "development", being a material change in use and that the material change of use was not exempted development.

Since the publishing of the Retail Planning Guidelines of 2000, further Guidelines were published by the Department of the Environment in 2005, and more recently in 2012. The applicant argued that the Inspector and the Board failed to properly interpret the definition of bulky goods by having regard to the 2012 Guidelines, rather than the earlier Guidelines of 2000 (as required by condition 18), and that such an error was an error of law, amenable to review by the High Court. They also argued that the Inspector wrongly took account of, and gave undue weight to the Guidelines of 2012, and that there was nothing in the Board's decision that indicated that it did not adopt the errors alleged to be contained in the Inspector's report.

Decision

The High Court refused to set aside the Board's decision, on the grounds that the Board had ample material before it to make the relevant decision.

Whether Planning Authorities must always have regard to the most up-to-date Guidelines

Baker J. found that the requirement in section 28 of the PDA 2000, for a planning authority to have regard to Ministerial Guidelines when performing any of its functions under the Act, does not always require the Board to have regard to the most up-to-date Guidelines, if other or, as here, earlier, Guidelines are those applicable to the matter before it. He held that the meaning of condition 18 was expressly limited to the Guidelines of 2000.

Baker J went on to state:

"This does not mean that the Guidelines of 2012 cannot inform the interpretative process, and it seems to me that the effect of section 28 is to mandate the Board to consider them, and in particular to take note of any clarification or interpretative assistance offered by them.  But if an application of the Guidelines of 2012 leads to a result which differs from that which would result from the Guidelines of 2000, the latter must prevail. To hold otherwise would mean that the express language of the condition could be displaced or replaced by a later administrative act of the Minister in issuing new Guidelines". 

Interplay between the Board's decision and the Inspector's Report

The Court concluded that the Board did not fall into any error of process. Insofar as there was an error of interpretation in the Inspector's report, it did not make its way into the decision of the Board. Baker J. noted that whilst the Board is required to have regard to the Inspector's report, it is well established that it need not follow the Inspector's recommendation, so long as there is some material to support its decision and that it gives reasons for its decision (Stack v An Bord Pleanála (Unreported, High Court, 11 July 2000).

The decision to which the Board came to was neither irrational, nor unreasonable, nor was it made as a result of a mistake in the law.  The Board had regard to, but did not slavishly follow the Inspector's report, and was not influenced by the error in that report, namely the view taken by the Inspector that she was to be guided in her understanding of goods which were truly characterised as bulky by the Guidelines of 2012, rather than, or as well as, those of 2000.

Accordingly the Court refused the relief sought.