Member Login

Correct tests applied in granting planning permission to retail discount store

By: Ian Fitzharris BL

or click here to request site subscription to search and view all judgments

High Court, in planning and development judicial review proceedings, dismisses challenge to planning board's grant of planning permission for the development of a retail foodstore premises in Meath, on the grounds that: (1) the board's inspector carried out the correct test in screening the development for appropriate assessment under the European Habitats Directive; (2) there was no error in the assessment of the retail impact of the development pertaining to Retail Planning Guidelines; and (3) the applicant failed to discharge its onus of proof to show that the board did not specify the matters it considered in its decision and to rebut the rebuttable presumption as to the validity of the board's decision.

Judicial review - commercial - planning board's decision to grant planning permission for development of retail foodstore - relevant factual background - Inspector's report - retail planning guidelines - grounds of challenge - whether decision a breach of Habitats Directive - whether sequential test submitted by planning applicant was fundamentally flawed - adequacy of Board's decision - approach to be taken at screening stage - legal principles - appropriate assessment - reports to be considered in substance and not with an excessive degree of formalism - Board clearly considered inspector's report and agreed with it in deciding to grant planning permission in light of recommendations - whether screening assessment failed to consider consequences of use of concrete and sediment run-off - no basis for impugning inspector's conclusions - no gap or lacunae in report - whether reliance on mitigation measures in breach of Habitats Directive - manner of pleading ground of challenge - no particulars provided - SUDS measures not mitigation measures - alleged erroneous identification of primary retail area - approach to be taken by court in reviewing inspector's conclusion on correct classification of development site - site correctly classified - presumption of validity in respect of Board's decision unless contrary shown - onus of proof - court entitled to read inspector's report and board's decision together - statutory obligations on board to provide reasons for its decisions.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Leave a Reply

Your email address will not be published. Required fields are marked *