Exemption for Change of Use Unavailable to Unauthorised Developments

Developers may avail of an exemption to seek planning permission for change of use of a development that complies with previous planning permission. In contrast, failure to construct a property in accordance with planning conditions will likely preclude a development from obtaining an exemption. Our Planning & Environment team discusses this development.

Background

The Applicant, Corajio Unlimited Company Trading as Mr Price Branded Bargains (the Applicant), challenged the decision of An Bord Pleanála (the Board). The Applicant was seeking to avail of an exemption from the requirement to apply for planning permission to change the store from a car sales store to a retail shop.

Permission was granted in 2004 by Athy Town Council (the Planning Authority) which was subject to 34 conditions. One of the conditions pertained to the development being carried out in accordance with the drawings and documentation submitted to the Planning Authority. This condition was not complied with.

The premises are currently owned by the Second Notice Party, Supermacs. A planning consultant on behalf of the tenant, the Applicant, sought a section 5 declaration from the Planning Authority in 2016. The question posed to the Planning Authority was “whether the change of use from the former car garage to use as a retail shop, is development, and or is not exempted development”.

What is exempted development?

Exempted development is development which does not require planning permission. An order was given stating that certain grounds of the planning permission had not been complied with. Therefore, the proposed change of use was not exempted development. The Applicant appealed this decision to the Board.

The Board accepted that the proposed change of use would generally come within the scope of Class 14 (a) of Part 1 of Schedule 2 of the Planning and Development Regulations 2001, as amended, (PDR) and would generally be considered exempted development. However, the building had not been built in accordance with the original planning permission granted. Therefore, the Board decided that change of use of the premises was development and was not exempted development.

The decision of the Board was judicially reviewed by the Applicant and five issues were considered by the Court:

1. Extension of time

It was claimed that the proceedings were not initiated in accordance with the time limits prescribed in the Planning and Development Act 2000, as amended (PDA). Under section 50(6) of the PDA, an application for leave to apply for judicial review must be made within eight weeks beginning on the date of the decision. The High Court has discretion to grant an extension under section 50(8) of the PDA if there is:

• A good and sufficient reason, and
• Failure to make an application was outside the applicant’s control

The extension of time was granted, and the Court noted that the length of delay, although an important factor, is not determinative. Instead, it noted that all relevant facts and circumstances must be taken into consideration. The Court remarked that the Board failed in their statutory duty to notify Mr. Price of its decision. The Board submitted that Mr. Price should have made enquiries regarding the status of the application. This was rejected by the High Court.

2. Whether exemption was available where there was breach of condition of planning permission

The pertinent question remained whether a disapplication of exemptions, which might otherwise be available for a change of use, had resulted from the failure to carry out development in accordance with plans and specifications submitted.

The building had not been constructed in accordance with drawings and documentation submitted with the planning application in the first instance.

The Court was satisfied that exemption provisions cannot be relied on where the original use is unauthorised. The High Court was of the view that

“Exemption provisions operate to assist the compliant developer who carries out development which has been exempted from the requirement to obtain planning permission in respect of changes treated as non-material under the statutory scheme. They do not avail an errant developer in regularising planning status where there has been noncompliance with the planning permission granted in the first place.”

3. Whether failure to determine question referred and provide reasons

The Applicant claimed that there had been a failure to determine the second question. This related to whether rectification of the building to its originally permitted state and a subsequent change of use to operate as a Mr. Price retail store would be exempted development. the Applicant claimed that no reasons had been given for this failure or omission.

The High Court held that there was no ambiguity as to why the decision was reached. The Board considered the main reasons and considerations, all of which were fully set out in the Board direction and Board order when read in conjunction with the Board Inspector’s report.

4. Whether the decision was unsupported by evidence

Finally, a complaint was made that there was no basis for the Board to conclude that the change of use would have implications in terms of traffic and pedestrian safety. The Court held that it could not accept on behalf of the Applicant that the traffic concerns constituted an “irrelevant consideration”. Evidence from the Inspector relating to observations on traffic and direct evidence from site visits showed that there was no pedestrian crossing. The context changed from a car salesroom to a Mr. Price store and, therefore, resulted in a difference in operations. There was no need for technical evidence when common sense demonstrated that a Mr Price store would generate more traffic than a car salesroom.

The Court was satisfied that adequate evidential basis was shown for the Board’s decision.

Conclusion

The Court refused the Applicant’s challenge of the Board’s decision and dismissed the proceedings on the basis that there was no error of law capable of negating the decision. Importantly, it was held that there was no flaw in the decision-making process. The Court noted that the decision of the Board does not exclude the Applicant from obtaining planning permission, it simply means that the exemption sought cannot apply.

This judgment highlights that exemption for change of use will be unavailable to unauthorised developments.

For more information and expert advice, contact a member of our Planning & Environment team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.