Corajio UnLtd Company Trading As Mr Price branded v An Bord Pleanala (Approved)

Factual and Procedural Background

These proceedings concern the change of use of a car sales store to a retail shop without planning permission, relying on an exemption under Class 14(a) of Part One of Schedule Two of the 2001 Regulations. The exemption relates to a change of use from the sale or leasing of motor vehicles to use as a shop. The premises in question was constructed not in accordance with the plans and documentation submitted at the planning application stage, despite a condition requiring such compliance. The fundamental legal question is whether non-compliance with a condition related to the construction of the premises results in the disapplication of an exemption for the change of use.

Planning permission was granted in 2004 for a car sales showroom with various ancillary uses, subject to 34 conditions, including a condition requiring the development to be carried out in accordance with submitted drawings. The premises as constructed differed materially from the permitted plans, notably in shape and size. The premises operated as a car sales showroom until 2013, and subsequently was leased to the Applicant (referred to as "Mr. Price") who operates a retail shop there since around 2016.

In 2016, a section 5 declaration was sought from the Planning Authority regarding whether the change of use from car garage to retail shop was development and if it was exempted development. The Planning Authority decided it was development but not exempted, citing non-compliance with conditions of the original permission. This decision was referred to the Board for review, which considered the non-conformity of the building's shape, size, and other aspects. Subsequent inspector reports and Board decisions consistently found that the change of use was development but not exempted development due to the breach of the original planning condition.

Mr. Price continued to operate the retail use relying on the claimed exemption. Further referrals and inspections were made, including consideration of whether rectifying the building to conform with the original permission would render the change of use exempted development. The Board ultimately decided in 2020 that the change of use was development and not exempted development, relying primarily on Article 9(1)(a)(i) of the 2001 Regulations, which disapplies exemptions where development contravenes a condition attached to a permission.

Proceedings for judicial review were commenced in 2021 challenging the Board's 2020 decision, including a claim for extension of time due to late notification of the decision.

Legal Issues Presented

1. Whether the court should grant an extension of time to bring judicial review proceedings outside the statutory eight-week period due to failure of the Board to notify the Applicant of its decision.
2. Whether non-compliance with a condition of planning permission relating to the construction of the premises results in the disapplication of exemptions otherwise available for a change of use under the Planning and Development Regulations.
3. Whether the Board failed to determine a referred question regarding whether rectification of the building to conform with the original permission and subsequent change of use would be exempted development.
4. Whether the Board's decision regarding traffic and pedestrian safety implications as part of the materiality of the change of use was unsupported by evidence or constituted an irrelevant consideration.

Arguments of the Parties

Appellant's Arguments

• The Board did not notify the Applicant of its 2020 decision, justifying an extension of time for judicial review proceedings.
• The breach of condition related to the construction of the premises should not disapply the exemption for the change of use, as the condition did not address use but construction.
• The Board failed to properly determine the question of whether rectification of the building and subsequent change of use would be exempted development.
• The Board's reliance on traffic and pedestrian safety to conclude the change of use was development and not exempt was unsupported by evidence and irrelevant.

Respondent's Arguments

• The Board contends that Article 9(1)(a)(i) applies where there is any breach of a condition of planning permission, regardless of whether the breach relates directly to the proposed development.
• The breach of condition in the construction of the premises renders the use unauthorised, disapplying any exemption for change of use.
• The Board denies that the Applicant should be granted an extension of time, arguing the Applicant did not move with due expedition after becoming aware of the decision.
• The Board maintains that the traffic considerations were relevant planning matters supporting the conclusion that the change of use is material and constitutes development.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the extension of time application, applying established principles requiring good and sufficient reason and circumstances outside the Applicant's control. It found that the Board failed in its statutory duty to notify the Applicant of its decision, supported by affidavit evidence and absence of notification on the Board’s file. This failure justified extending time beyond the statutory eight weeks until the Applicant became aware of the decision.

Regarding the period between knowledge of the decision and commencement of proceedings, the court acknowledged some delay but considered it reasonable in light of the Board's failure to notify and the statutory framework allowing eight weeks to challenge from knowledge. The court emphasized that the eight-week period balances finality and access to justice and that no special circumstances required further expedition. There was no identified prejudice to third parties, and the Applicant moved with proper expedition once aware.

On the substantive issue, the court analyzed whether non-compliance with the condition requiring construction in accordance with approved plans disapplies the exemption for change of use. It found that the Board's interpretation of Article 9(1)(a)(i) was correct: a breach of any condition attached to a permission disapplies exemptions otherwise available. The use of the premises was unauthorised due to the breach of condition 1, rendering any change of use also unauthorised and not exempted development.

The court rejected the Applicant's argument that the breach related only to construction and not use, noting that the statutory scheme defines unauthorised use broadly and that exemptions are privileges strictly construed. The court emphasized that exemptions cannot be used to regularize prior breaches.

The court also found that the Board sufficiently addressed the question of rectification of the building and subsequent use, concluding that such works would constitute material development not exempted. The Board's decision and inspector's report logically answered the referred questions.

Regarding traffic and pedestrian safety, the court held that these were relevant planning considerations in assessing the materiality of the change of use and whether it constituted development. The inspector conducted site visits and made observations supporting an increase in traffic. The court found no lack of evidential basis or irrelevant consideration in the Board’s decision.

Overall, the court found no error of law or procedural unfairness in the Board’s decision and upheld the reasoning and conclusions reached.

Holding and Implications

The court granted an extension of time under s. 50(8) of the Planning and Development Act 2000 to allow the judicial review proceedings to be brought despite the delay beyond the statutory eight-week period, due to the Board’s failure to notify the Applicant of its decision.

However, the court dismissed the substantive challenge to the Board’s decision. It held that the change of use from car sales premises to a retail shop was development but not exempted development because the premises were not constructed in accordance with the planning permission, constituting a breach of condition 1 which disapplies the exemption under Article 9(1)(a)(i) of the 2001 Regulations.

The decision confirms that exemptions for change of use do not apply where there is non-compliance with conditions of planning permission relating to construction, and that prior breaches cannot be regularized by relying on exemptions. The court also affirmed the relevance of traffic and pedestrian safety considerations in assessing materiality of change of use. No new precedent was established beyond the application of existing principles.