Mandatory Engagement with Specific Development Plan Objectives: High Court requires explicit assessment of “practicable and viable” under LCC06 before permitting out‑of‑centre retail (Sherwin applied)

Mandatory Engagement with Specific Development Plan Objectives: High Court requires explicit assessment of “practicable and viable” under LCC06 before permitting out‑of‑centre retail (Sherwin applied)

Introduction

This High Court judgment (Watchhouse Cross Shopping Centre Ltd & Sataner Ltd v An Coimisiún Pleanála & Ors [2025] IEHC 520) addresses a recurring tension in plan-led retail development: how decision-makers must treat a development plan objective that prefers new retail in existing centres “where practicable and viable” when an applicant seeks permission for an out-of-centre store.

The dispute arose in Moyross, Limerick. The applicants operate the Watchhouse Cross Shopping Centre (WCSC), the designated District Centre for the area. Aldi sought permission for a standalone discount foodstore on mixed-use “opportunity” lands to the north (New Road/Knockalisheen Road). The Limerick Development Plan 2022–2028 states in Objective LCC06 that the preferred location for new retail—“where practicable and viable”—is within existing Town Centres (including District or Village Centres). The planning authority granted permission; on appeal, the Commission (successor to An Bord Pleanála) granted permission with conditions, relying on the Retail Planning Guidelines (2012), an RIA, and plan provisions that identify the site as an “opportunity site” for a single convenience unit (Objective BM 01).

The central issue was whether the Commission committed a legal error by not explicitly engaging with Objective LCC06 and its built-in test of practicability and viability, in particular by failing to assess whether additional retail could, with reasonable adaptation or amalgamation, be accommodated within the existing District Centre before endorsing the out-of-centre proposal.

Summary of the Judgment

Humphreys J quashed the Commission’s decision on the primary ground (Core Ground 1): the Commission failed to interpret and apply Objective LCC06 and therefore failed to undertake the legally required analysis of (a) whether the development would materially contravene that specific plan objective, and (b) if so, on what basis that contravention could be justified. The Court applied the Supreme Court’s decision in Sherwin v An Bord Pleanála [2024] IESC 13 to require explicit engagement with the text and test of the relevant development plan objective, not a generalised or “harmonious” wash-over using other supportive plan provisions.

Two other domestic grounds failed:

  • Landowner consent (Core Ground 2): dismissed under the jus tertii doctrine (third parties cannot assert the property rights of others).
  • Statutory consultee notification (Core Ground 3): although Article 28(1)(n) ought to have been engaged by the planning authority (given an NIS was lodged), the Commission cured any deficit by notifying the bodies under section 131 of the 2000 Act; quashing on a technicality would be disproportionate.

EU law grounds (relating to EIA screening and the validity of Article 109 of the 2001 Regulations) were not determined because the case was disposed of on the domestic ground. Costs were awarded to the applicants against the Commission, limited to the issue on which they prevailed.

Analysis

1. Precedents Cited and Their Influence on the Decision

  • Sherwin v An Bord Pleanála [2024] IESC 13. The cornerstone authority. The Supreme Court held that:
    • Interpreting a development plan is ultimately for the courts; decision-makers must engage with the ordinary meaning of the plan text.
    • Where material contravention is in play, the decision-maker must focus on the specific plan provision alleged to be contravened, interpret its terms, and apply it to the facts.
    • General planning judgments or implicit impressions cannot substitute for a determination on whether a specific policy is contravened and, if so, whether that is material and justifiable.
    Humphreys J treats Sherwin as a general principle (not confined to SHD), emphasising that the “crucial starting point” is explicit engagement with the relevant objective’s text. This drove the outcome.
  • Ryanair v An Bord Pleanála [2025] IEHC 74. Distinguished. Ryanair tolerates a taxonomic mix-up between “materiality” and “justification” where the decision is otherwise substantively robust. Here, by contrast, the Commission never identified or engaged with the specific plan objective (LCC06), so the threshold step required by Sherwin was missing.
  • Roughan v Clare County Council (High Court, 18 December 1996). Materiality is judged by whether the contravention is a ground on which local interests would, or reasonably might, oppose. The viability of the District Centre as a local anchor made materiality obvious here.
  • Jus tertii and landowner consent challenges:
    • Frascati Estates Ltd v Walker [1975] IR 177; Heather Hill Management Co CLG v ABP [2019] IEHC 450; Heather Hill (No. 2) [2022] IEHC 146; Balscadden Road SAA Residents Assoc v ABP [2020] IEHC 586; Minoa Ltd v ABP [2024] IEHC 704. Together, they support refusal of quashing relief where third parties attempt to vindicate property rights of someone else (here, lands owned by the local authority), absent the landowner’s own complaint.
  • Technicality versus substance in procedural errors:
    • Moore v DLRCC [2016] IESC 70; Save Cork City CLG v ABP [2022] IESC 52; R (Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin); Walsh v Jones Lang Lasalle [2017] IESC 38; O’Sullivan v HSE [2023] IESC 11. These authorities caution against quashing on mere technicalities and against over‑parsing decisions where the substance is addressed. The Article 28(1)(n) point fell within this zone because the Commission’s section 131 notifications substantially achieved the aim of the Regulation on appeal.
  • Record-based review, “harmless error” and late affidavit evidence:
    • Line of authority including I.S.O.F. v Minister for Justice [2010] IEHC 457; North Great George’s Street Preservation Society v ABP [2023] IEHC 241; Reid v ABP (No. 1) [2021] IEHC 230; H.A. v Minister for Justice [2022] IECA 166; RAS Medical v RCSI [2019] IESC 4; Doorly v Corrigan [2022] IECA 6; Koulibaly v Minister [2004] IESC 50. The Court reiterates that the validity of an administrative decision is judged on the material before the decision-maker. Post‑hoc evidence can only go to harmless error; the onus shifts to the respondent/developer; and unresolved evidential conflicts are resolved against the party with the burden, especially if they do not seek cross‑examination. This underlines why Aldi’s affidavits could not cure the failure to engage with LCC06.

2. The Court’s Legal Reasoning

(a) Objective LCC06, material contravention, and the sequential approach

Objective LCC06 in the Retail Strategy (a component of the Development Plan) provides that “The preferred location for new retail development where practicable and viable is within existing Town Centres (including District or Village Centres).” That statement embodies a clear, operative test. Applying Sherwin, the decision-maker had to:

  • Identify LCC06 as the specific, relevant plan objective.
  • Interpret its key condition (“where practicable and viable”).
  • Apply that test to the facts, considering whether the proposal could reasonably be accommodated within the existing District Centre—potentially through unit amalgamation, reconfiguration, or modest development—before moving to an out‑of‑centre site.
  • If the proposal would contravene LCC06, assess whether the contravention is material (Roughan), and if so, either refuse or transparently justify the grant in a manner consistent with section 37(2).

The inspector did not mention LCC06, did not interpret “practicable and viable,” and treated the District Centre largely by reference to a snapshot of vacancy and footfall observations (“quite busy… most units appeared occupied”). That failed to grapple with whether practicable, viable provision could be made through reasonable adaptation inside the centre. Further, the inspector stated that nowhere do the many objectives say convenience retail “should be provided on the site of the existing district centre.” As the Court notes, that sentence, read substantively, contradicts LCC06’s preference for existing centres where practicable and viable.

The Commission relied on Objective BM 01 (The Bays, Moyross), which identifies the appeal site as mixed-use “opportunity lands” where a single convenience unit up to a net 1,500 m² may be considered subject to RIA. Humphreys J emphasises that a “harmonious” reading does not mean treating supporting objectives as overriding LCC06. The harmonious reconciliation is:

  • First, test LCC06: if practicable and viable, place the retail in the existing centre.
  • Only if not practicable/viable, consider the “opportunity site” under BM 01.

In other words, the existence of BM 01 does not extinguish LCC06; both must be given meaning. Skipping LCC06 is a legal error.

The Retail Planning Guidelines’ sequential approach reinforces this structure. They require flexibility, realism, and, where appropriate, disaggregation and adaptation to fit into centre locations. The Court points out that evaluating only the centre’s static, as‑is configuration, while generously crediting the potential of a greenfield site, rigs the comparison. A fair assessment must consider whether the centre could practicably and viably be adapted.

(b) Jus tertii and landowner consent

The applicants argued the application was invalid for lack of landowner consent for part of the lands. The Court rejected this. A third party generally cannot seek relief for alleged infringements of someone else’s property rights (jus tertii). The local authority owned the lands, supported/consented during the process, and did not object. In the absence of a challenge by the landowner, quashing on this basis would be inappropriate. Related points (such as whether a section 183 disposal resolution was required) fell away.

(c) Statutory consultee notification and “technicalities”

Because an NIS was lodged, Article 28(1)(n) of the 2001 Regulations should have been engaged by the planning authority at application stage to notify the Heritage Council, the Minister, and An Taisce where it appears development might have significant effects on nature conservation. The planning authority did not do so. On appeal, however, the Commission used section 131 of the 2000 Act to notify those bodies. The Court accepts this as a substantive cure, refusing to quash for a technical error where the purpose of the notification regime was achieved in the de novo appeal. Declaratory relief against the planning authority was not considered because it was not joined as a respondent.

(d) Late evidence and harmless error

Aldi filed affidavit evidence to counter the applicants’ assertions about the availability of space within the District Centre and to argue harmless error. The Court reiterates:

  • Legality is assessed on the record before the decision-maker; new facts are generally inadmissible.
  • If offered to show harmless error, the burden lies on the respondent/developer; evidential conflicts are resolved against them absent cross-examination; unexplained matters within their own knowledge (e.g., failure to engage with the centre operator) weaken their position.
  • Most importantly, none of this can substitute for the missing legal step: explicit engagement with LCC06’s test. Even perfect after-the-fact evidence cannot cure a non-engagement error under Sherwin.

3. What This Judgment Clarifies or Establishes

  • Decision-makers must expressly identify, interpret, and apply the text of the specific development plan objective alleged to be contravened. General support from other objectives does not obviate that duty.
  • Where an objective embeds a test (here, “where practicable and viable”), the test is not optional. The decision must show the test was understood and applied.
  • A “harmonious reading” cannot be used to marginalise or ignore a specific operative objective; true harmony gives both provisions effect.
  • In retail cases, the sequential approach requires flexible, realistic appraisal of centre options, including potential unit amalgamation or adaptation and, where feasible, disaggregation. A static “as-is” snapshot is inadequate if reasonable adaptation could make a centre option practicable and viable.
  • On judicial review, post‑decision affidavits cannot replace the required analysis in the decision; they can only go to harmless error, and the onus there is demanding.
  • Jus tertii continues to bar third-party challenges based on another’s property rights, absent the owner’s complaint.
  • Omissions by a planning authority to notify statutory consultees may be cured on appeal by the Commission using section 131, and courts are slow to quash for purely technical, non-prejudicial errors.

Impact and Practical Implications

For the Planning Commission (formerly ABP) and Inspectors

  • Where an appeal raises (or the materials objectively trigger) a potential material contravention of a specific plan objective, the decision must:
    • Name the objective (here, LCC06).
    • Explain what its operative text means (here, “practicable and viable”).
    • Apply that test to the facts, including realistic adaptation within existing centres before endorsing out-of-centre options.
    • If a contravention is found, address materiality and justification transparently.
  • Do not rely solely on plan objectives that support the proposal (e.g., “opportunity sites”) to sidestep a conflicting objective. Both must be reconciled with reasons.

For Developers and Retail Applicants

  • Expect tighter scrutiny of the sequential approach and of compliance with “centre-first where practicable and viable” objectives. An RIA should:
    • Document active engagement with centre owners/agents on availability, potential amalgamation, reconfiguration, and realistic timelines.
    • Demonstrate flexibility in format and consider disaggregation, as the Guidelines require.
    • Avoid “greenfield by default”: do not rig the comparison by treating centres as fixed while assuming ideal delivery on peripheral sites.
  • Keep a clear paper trail. If the matter proceeds to JR, late affidavits will rarely rescue a decision that failed to engage with the plan objective.

For Existing Centre Operators and Objectors

  • Precise pleading matters. Identify the specific plan objective (e.g., LCC06) and explain how the proposal would contravene it. Here, that focus helped secure relief.
  • Provide practical illustrations (e.g., indicative amalgamation drawings) to show practicability and viability. While not a substitute for the decision-maker’s duty, concrete material strengthens the record.

For Planning Authorities

  • Where an NIS is lodged or significant nature conservation effects may arise, ensure Article 28(1)(n) notifications issue at application stage. While the Commission may cure on appeal, best practice is to avoid technical errors.

Complex Concepts Simplified

  • Development Plan Objective: A policy rule in the local development plan which decision-makers must apply. Some objectives include built-in tests or preferences.
  • Material Contravention: A significant breach of a development plan objective. Materiality turns on whether local interests would reasonably object on that basis.
  • Objective LCC06: States that new retail should go into existing centres if that is practicable and viable. It embeds a decision-making test (“practicable and viable”).
  • Objective BM 01 (The Bays, Moyross): Identifies “opportunity” lands where a single convenience unit (net up to 1,500 m²) may be considered, subject to RIA—ancillary to the area’s mixed-use employment focus.
  • Sequential Approach (Retail Planning Guidelines 2012): A stepwise preference—town/district centre, then edge-of-centre, then out-of-centre—applied with flexibility and realism, including willingness to adapt formats and, where appropriate, to disaggregate large schemes.
  • Section 37(2) PDA 2000: Allows the Board/Commission to grant permission even where a development materially contravenes the plan, but only after addressing materiality and, in some cases, specific justifications.
  • Jus tertii: A rule that a party cannot assert rights that belong to someone else (e.g., property rights of a non-complaining landowner).
  • Article 28(1)(n) PDR 2001: Requires the planning authority to notify certain bodies (Heritage Council, Minister, An Taisce) where development might significantly affect nature conservation.
  • Section 131 PDA 2000: Gives the Commission discretion on appeal to consult any person or body; can cure notification deficits from first instance.
  • NIS and AA: A Natura Impact Statement supports Appropriate Assessment under the Habitats Directive. The Board conducted Stage 2 AA here and found no adverse effects on site integrity.
  • EIA Screening: A separate process under the EIA Directive for projects likely to have significant environmental effects. The Court did not reach the EIA grounds.
  • Harmless Error: Even if an error is found, the respondent may show it made no difference to the outcome. The burden lies on the respondent; late evidence is tightly constrained.

Conclusion

This decision is a careful and direct application of Sherwin to a retail planning context. Its central message is simple but far-reaching: when a development plan objective sets a clear preference subject to a test (here, “practicable and viable” for existing centres), a decision-maker must confront that text explicitly—interpret it, apply it, and record the reasoning. Supportive objectives, such as “opportunity site” policies, cannot be used to gloss over the preferred-centre proviso. A proper sequential assessment demands genuine flexibility, practical engagement with centre options, and a willingness to consider reconfiguration or disaggregation.

By dismissing technical challenges (landowner consent via jus tertii; late statutory consultation cured by section 131) while insisting on rigorous engagement with the development plan, the Court reinforces two complementary themes: robust plan-led decision-making and proportionate judicial review. For developers and authorities alike, the practical lesson is to put the specific objective at the heart of the analysis and to evidence, in real terms, why centre locations are or are not practicable and viable before turning to out-of-centre solutions.

Key Takeaways

  • Explicitly cite, interpret, and apply the specific development plan objective alleged to be contravened; do not assume general policy compliance suffices.
  • “Harmonious reading” means giving each relevant objective operative effect, not ignoring one because another supports the proposal.
  • For retail, the sequential approach is not satisfied by a static snapshot of centre occupancy. Consider reasonable adaptation, amalgamation, and format flexibility.
  • Third parties cannot typically quash permissions on another’s property rights (jus tertii), and courts are slow to quash for non-prejudicial procedural missteps cured on appeal.
  • Post‑decision affidavits cannot repair a failure to engage with the plan; harmless‑error arguments carry a heavy burden and require robust evidential handling.

Case Details

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