High Court quashes planning board decision for failing to address material contravention of development plan objective.

[2025] IEHC 520

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000419]

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT

ACT 2000

BETWEEN

WATCHHOUSE CROSS SHOPPING CENTRE LIMITED AND SATANER LIMITED

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

ALDI STORES (IRELAND) LIMITED

NOTICE PARTY

Date of impugned decision: 30 January 2024

Date proceedings commenced: 22 March 2024

Date of main hearing: 10-11 July 2025

Date draft judgment circulated: 11 September 2025

JUDGMENT of Humphreys J. delivered on Friday the 3rd day of October 2025

1. An express objective of the development plan here, LCC06, envisaged that new retail

development should be concentrated in existing town, district and village centres, if practicable and

viable. The relevant district centre is an existing shopping centre which is naturally anxious to retain

its long-term viability. The developer is a discount grocery store that preferred (and seems generally

to prefer) a stand-alone development. The board sided with the developer, but didn’t either refer

to objective LCC06, or expressly address the test specified within that objective. The question here

is whether this constituted a legal error in the approach to material contravention.

Geographical context

2. The project (https://www.pleanala.ie/en-ie/case/314911) involves the construction of a

single-storey discount food store (to include off-licence use) and all associated site works located on

lands at New Road/Knockalisheen Road, Ballynanty More, Moyross, which is to the north of Limerick

City. The site is approximately at: https://maps.app.goo.gl/usZkQHiGwQD7RMW66.

3. The applicants operate the Watchhouse Cross Shopping Centre (WCSC) which is nearby, a

view of which is at https://maps.app.goo.gl/rZHy3Kd7YPRF9TFt9.

4. The general area is described as follows in the development plan:

“3.4.6.5 Moyross

Moyross lies to the north-west of Limerick City. The Moyross Regeneration Area covers

approximately 200ha. (494 acres) and spans almost 2 kilometres from west to east and 1.8

kilometres north to south. Moyross presents the following key challenges:

• Poor connectivity and accessibility with adjacent neighbourhoods, which has resulted in

Moyross becoming physically, economically and socially isolated;

• Over-provision of underutilised public open space;

• Several under-used and vacant infill housing sites, which currently detract from the overall

appearance of the estate;

• Due to the demolition of some blocks to date, the layout of the houses provide exposed

boundaries which provide little in the way of natural surveillance - undermining the safety

and security of the area;

• To the east of Moyross is a significant area of wetland, known as Knocknalisheen Marsh,

which is prone to flooding;

• A key challenge in Moyross is to ensure that any development, proposed as part of the

LRFIP, does not have a negative impact on the water quality and habitats within Moyross or

downstream of the area.”

Facts

5. WCSC opened in the early 2000s in Moyross, as noted above, a somewhat deprived area of

Limerick. Two previous anchor tenants quit the centre over the years, with Tesco, previously

Iceland, currently occupying that role.

6. An application for planning permission was lodged to the planning authority on 30 November

2021 on behalf of the notice party. The application form indicated that environmental impact

assessment (EIA) was not required but was accompanied by a Natura impact statement (NIS).

7. The applicants made submissions on the planning application on 10 January 2022.

8. A request for further information (RFI) was made by the council on 2 February 2022.

9. The notice party responded to the RFI on 2 September 2022.

10. The council granted permission subject to 18 conditions on 28 September 2022.

11. The applicants appealed the decision to the commission on 24 October 2022.

12. The notice party made observations on the appeals on 23 November 2022.

13. The commission circulated the notice party’s observations requesting submissions pursuant

to s. 131 of the 2000 Act.

14. The applicants made further comments in response to the commission’s s. 131 request on

12 December 2022.

15. The inspector’s report issued on 19 December 2023, following a site visit on 6 December

2023.

16. The commission granted permission subject to 19 conditions on 30 January 2024.

Procedural history

17. The applicants filed their statement of grounds and grounding affidavit on 22 March 2024.

18. The ex parte docket was filed on 25 March 2024, and the matter was first listed for mention

during a vacation sitting on the same date.

19. On 13 May 2024, leave was granted and the matter was adjourned to 17 June 2024.

20. The originating notice of motion was issued on 17 May 2024.

21. On 17 June 2024, the matter was adjourned to the List to Fix Dates, which was held on 21

October 2024, at which time a hearing date was fixed.

22. On 3 March 2025, the State indicated that it wasn’t seeking modularisation and indeed

nobody sought that.

23. The State respondents filed their statement of opposition on 11 April 2025.

24. The commission filed its opposition papers on 29 May 2025.

25. The notice party filed a statement of opposition on 3 June 2025.

26. On 26 May 2025, revised directions were agreed.

27. On 18 June 2025, the commission substituted for the board by operation of law.

28. The matter was listed for callover on 30 June 2025, at which time I directed that the parties’

written submissions could exceed the usual word limit.

29. The applicants filed written submissions on 30 June 2025.

30. The State filed its written submissions on 7 July 2025.

31. The commission and the notice party both filed written submissions on 8 July 2025.

32. The matter was heard on 10 and 11 July 2025. Judgment was reserved at the end of that

hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly courteous,

professional and helpful assistance. As I have previously sought to make clear, insofar as any points

advanced are not being accepted in this or any other given judgment, that is solely to do with the

inherent merits of such points and is no reflection on those instructed to convey such points, a

distinction that most certainly should be, and I believe generally is in fact, self-evident to all

concerned.

33. On 11 September 2025, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors. The rules of engagement in such a situation are that the draft is

without prejudice to the right of the court ultimately to issue a judgment in whatever form or with

whatever content it considers appropriate. Any comments must be emailed to the relevant judicial

assistant and uploaded to ShareFile in writing within 7 days and should not be to reargue the

substance (submissions to that effect will be disregarded) but are confined to matters such as:

(a) informing the court as to whether a formal judgment is required, and if so on what

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

(c) typographical, factual or legal errors in the decision;

(d) requesting the court to decide a point that, while obiter/ unnecessary to decide, is

one the party considers could beneficially be decided;

(e) identifying significant points that the party considers that the court was required to

address but has not;

(f) identifying points that the court proposes to address but that the parties consider it

unnecessary to address;

(g) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; and

(h) any suggestions as to the wording (as opposed to substance) of the decision if the

proposed wording causes any significant issue for a party for any identified reason.

34. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the expiry of the 7 day period, whether comments are made or not. That

period will not be extended save in exceptional circumstances on application explained on affidavit

within the period. All parties involved are requested to positively confirm to the court the position

including if they have no observations on the draft legitimately falling within the foregoing

parameters. Overall the draft judgment procedure is a concession which parties can engage with

but must do so with immediate dispatch, discipline and focus – it is not the opening of a new phase

of the litigation that gives rise to “an entitlement to elaborate procedures at every point” (borrowing

the point made by O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE

[2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 39).

35. The provisional order included an order amending the Central Office cause books to change

board to commission, but an order to that effect was made in the meantime on 15 September 2025

as part of a mass renaming in the Cause Books on the application of the relevant solicitors for the

commission.

36. The commission helpfully made a number of suggestions by letter of 19 September 2025,

and I have either incorporated the typographical-type changes or have attempted to address those

points under the relevant headings below. (In particular – the commission questioned the original

version of the phrasing of what is now para. 60 in the draft judgment and I think they had a point

that it could have been clearer, so I have now tried to address that).

37. The mention date for this purpose was 29 September 2025, at which the parties confirmed

the changes they were proposing. Following this I have expanded the detail of the order, but any

difficulties with such detail can be reconsidered in the event of written submissions prior to the next

mention date, as the order will not be perfected before then.

Relief sought

38. The reliefs sought are as follows:

“1. An order of Certiorari by way of application for judicial review quashing the Order of

the Respondent granting planning permission to the Notice Party for proposed development

of a discount food store and associated works at New Road, Moyross, Co. Limerick of 30th

January 2024 (An Bord Pleanála Ref: 314911-24).

2. Such declaration(s) of the legal rights and/or legal position of the Applicants and/or

persons similarly situated and/or of the legal duties and/or legal position of the Respondent

as the Court considers appropriate.

3. A Declaration that Article 109(2) of the Planning and Development Regulations 2001

(as amended) is ultra vires and invalid in that it constitutes a mis-transposition of Article

4(3) of the EIA Directive (Directive 2011/92/EU as amended) and/or is not in accordance

with and is contrary to the EIA Directive.

4. A Declaration that Article 109(2) of the Planning and Development Regulations (as

amended) as inserted by Article 69b of, European Union (Planning and Development)

(Environmental Impact Assessment) Regulations 2018 (S.I No. 296 of 2018) is invalid as

Article 109(2) is not necessitated by Ireland’s membership of the European Union and/or is

not permitted under section 3 of the European Communities Act 1972 and therefore was

adopted in breach of Article 15.2.1 of the Constitution.

5. A Declaration that Section 50B of the Planning and Development Act, 2000 (as

amended), and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act,

2011 and/or that the interpretative obligation set out in Case C-470/16 North East Pylon

Pressure Campaign Limited v. An Bord Pleanála whereby in proceedings where the

application of national environmental law is at issue, it is for the national court to give an

interpretation of national procedural law which, to the fullest extent possible, is consistent

with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention apply to these

proceedings.

6. If necessary, an order extending the time for the bringing of the within proceedings,

pursuant to s.50(8) of the Planning and Development Act 2000 (as amended).

7. A stay, if necessary, on works being carried out pursuant to the impugned grant of

planning permission pending the resolution of these proceedings.

8. Further or Other Order.

9. Costs.”

Grounds of challenge

39. The core grounds of challenge are as follows:

“Part a Core Grounds

Domestic Law Grounds

1. The decision of the Respondent (‘the Board’) of 30th January 2024 (An Bord Pleanála

Ref: 314911-24) (‘the Impugned Decision’) to grant planning permission for a single storey

discount food store and associated works (‘the Proposed Development’) is invalid because

the Proposed Development materially contravenes ‘LCC06’ of the Limerick City and County

Council: Retail Strategy for Limerick-Shannon Metropolitan Area and County Limerick 2022-

2028 and/or failed to properly interpret, apply and have regard to the Retail Planning

Guidelines for Planning Authorities issued by the Department of the Environment,

Community and Local Government in April, 2012, and/or the Board’s conclusions in making

and reaching its Decision contains material errors of fact and law and/or the Board failed to

provide any or any adequate reasons for its decision, further particulars of which are at Part

2 below.

2. The Impugned Decision is invalid as the application did not comply with

Article(22)(2)(g) of the Planning and Development Regulations, 2001 (as amended) ( the

2001 Regulations) and /or the Board erred in law and/or took into account irrelevant factors

and/or had no jurisdiction to grant permission for an invalid application in respect of which

no consent had been given for part of the land concerned, further particulars of which are

at Part 2 below.

3. The impugned decision is invalid and in breach of the 2001 Regulations as no notice

was given and/or no consideration was given (and/or inadequate reasons were given in

respect thereof) to putting the relevant statutory consultees on notice of the application

pursuant to Article 28(1)(n) of the 2001 Regulations as required in respect of a development

that might have significant effects in relation to nature conservation and/or the Board acted

ultra vires in purporting to put the statutory consultees on notice, further particulars of which

are at Part 2 below.

European Law Ground

4. The Impugned Decision is invalid because the Board failed to comply with Article

109 of 2001 Regulations and/or Article 4(5) of the EIA Directive as it was not open to the

Board to conclude that the possibility of significant effects on the environment could be

excluded on a preliminary assessment basis in the absence of any or any adequate objective

environmental information and/or the Board and gave inadequate reasons for its conclusion

that Stage 2 EIA was not required and/or is predicated on a material error of law and/or

fact, further particulars of which are at Part 2 below.

5. The Impugned Decision is invalid because the Board failed to carry out a lawful

screening for Environmental Impact Assessment contrary to Article 4(2)(a) of the EIA

Directive as transposed by art. 109 of the 2001 Regulations because (a) the Notice Party,

did not provide the information specified in Annex IIA of the EIA Directive and/or Schedule

7A of the 2001 Regulations, including how it took into account the available results of other

relevant assessments of the effects on the environment carried out pursuant to other EU

legislation; (b) the Notice Party did not provide the information specified in the format

required by Article 4(4) of the EIA Directive; (c) the Board’s screening determination did not

comply with Article 4(5)(b) and/or Regulation 109(4)(a) of the 2001 Regulations; and/or (d)

insofar as the Board’s did not carry make a screening determination (based on Regulation

109(2)(b)(i) or otherwise) such a decision is unlawful because this provision is invalid and

mis-transposes the EIA Directive. Further particulars are set out in Part 2 below.

Validity Grounds

6. Article 109(2) of the 2001 Regulations is ultra vires and invalid insofar as it

contravenes and/or mis-transposes Article 4(3) of the Environmental Impact Assessment

Directive (Directive 85/337/EEC as amended) (‘the EIA Directive’) by providing for a case-

by-case examination as to whether a project need not undergo EIA screening or EIA and/or

is not in accordance with and is in breach of the EIA Directive, further particulars of which

are at Part 2 below.

7. Article 109(2) of the 2001 Regulations was invalidly transposed in breach of section

3 of the European Communities Act 1972 and thereby in breach of Article 15.2.1 of the

Constitution insofar as it purported to transpose the option given to Member States in Article

4(3) of the EIA Directive to provide for a procedure where projects are not subject to EIA

Screening or EIA, since this option is not necessitated by Ireland’s membership of the EU,

further particulars of which are at Part 2 below.”

The impugned decision

40. The impugned decision provides as follows:

“Decision

GRANT permission for the above proposed development in accordance with the said plans

and particulars based on the reasons and considerations under and subject to the conditions

set out below.

Reasons and Considerations

Having regard to the provisions of the Limerick Development Plan 2022-2028 and to the

Retail Planning Guidelines for Planning Authorities issued by the Department of the

Environment, Community and Local Government in April, 2012, the location of the site, and

the scale and quantum of retail, as proposed, it is considered that the proposed

development, subject to compliance with the conditions set out below, would not impact

adversely on the vitality or viability of existing retail development, would represent an

appropriate design response to the site's context and would not seriously injure the visual

amenities of the area. The proposed development would, therefore, be in accordance with

the proper planning and sustainable development of the area.

Appropriate Assessment: Stage 1

The Board completed a Stage 1 Screening for Appropriate Assessment in relation to the

potential effects of the proposed development on designated European Sites, taking into

account the nature, scale and location of the proposed development, the Appropriate

Assessment Screening Report submitted with the application and the Inspector's report and

submissions on file. In completing the Stage 1 Screening for Appropriate Assessment, the

Board accepted and adopted the screening assessment and conclusion contained in the

Inspectors report in respect of the identification of the European sites which could potentially

be affected, and the identification and assessment of the potential likely significant effects

of the proposed development. The Board agreed with the screening assessment and

conclusion contained in the Inspectors report that the Lower River Shannon Special Area of

Conservation (Site Code:002165) and the River Shannon and River Fergus Estuaries Special

Protection Area (Site Code:004077) are the European sites for which potential significant

effects could not be ruled out.

Appropriate Assessment: Stage 2

The Board considered the Natura Impact Statement and associated documentation

submitted with the application, the mitigation measures contained therein, the submissions

and observations on file, and the Inspector's assessment. The Board completed an

Appropriate Assessment of the implications of the proposed development for the

aforementioned European Sites in view of the sites' conservation objectives. The Board

considered that the information before it was adequate to allow the carrying out of an

Appropriate Assessment. In completing the Appropriate Assessment, the Board considered,

in particular, the following:

a) the likely direct and indirect impacts arising from the proposed development at New

Road/Knockalisheen Road, Ballynanty More, Moyross, Limerick individually, and in

combination with other plans or projects,

b) the mitigation measures, which are included as part of the current proposal,

c) the conservation objectives for the European Sites,

d) the views contained in the submissions, and

e) the report of the Planning Inspector.

In completing the Appropriate Assessment, the Board accepted and adopted the Appropriate

Assessment carried out in the Inspector's report in respect of the potential effects of the

proposed development on the aforementioned European Sites, having regard to the sites'

conservation objectives. In overall conclusion, the Board was satisfied that the proposed

development, by itself or in combination with other plans or projects, would not adversely

affect the integrity of the European Sites, in view of the sites' conservation objectives.”

Domestic law issues

41. Given the way the matter evolved it makes sense to start with core grounds 2 and 3.

Core ground 2 – lack of landowner consent

42. Core ground 2 is:

“2. The Impugned Decision is invalid as the application did not comply with

Article(22)(2)(g) of the Planning and Development Regulations, 2001 (as amended) ( the

2001 Regulations) and /or the Board erred in law and/or took into account irrelevant factors

and/or had no jurisdiction to grant permission for an invalid application in respect of which

no consent had been given for part of the land concerned, further particulars of which are

at Part 2 below.”

43. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant

The planning application was invalid because it failed to comply with Article 22(2)(g) of the

Planning and Development Regulations 2001 (‘PDR’) since it was not accompanied by the

consent of the local authority which owns part of the land within the red line boundary. The

subsequent provision of the consent after the fact cannot serve to validate an otherwise

invalid application. The Board erred in handling a decision based on an invalid application.

Commission

By way of preliminary plea, the Commission maintains that in circumstances where the pleas

concerning alleged non-compliance with Art. 22(2)(g) arise out of the ownership of certain

lands by Limerick City and County Council, the Applicants’ attempts to advance them are

contrary to the jus tertii doctrine and are not therefore permissible.

Without prejudice thereto, the Commission denies the Decision is invalid because the

application did not comply with Art.22(2)(g) of the PDR and/or that sufficient consent did

not accompany the application. The Commission’s position is that the PA validated the

application at first instance and the additional letter of consent submitted by the Notice Party

in reply to the RFI by the PA simply confirmed the position as outlined in the letter of consent

initially submitted.

Moreover, the Applicants’ attempt to characterise the PA’s confirmation letter as irrelevant

confirms the excessively technical nature of the Applicants’ complaint, and, if necessary,

relief should be denied as a matter of discretion.

State

N/A

Notice Party

It is significant in terms of the Applicants’ locus standi that they are making this point for

the first time in these judicial review proceedings, neither of the Applicants (or the other

third party appellant) having raised the issue of the adequacy of the Council’s consent in the

appeal to the Board, notwithstanding the fact that s.127(1)(d) of the 2000 Act requires that

an appeal must ‘state in full the grounds of appeal or referral and the reasons, considerations

and arguments on which they are based’.

The planning application was validly lodged and fully complied with the requirements of

Article 22(2)(g) of the Planning and Development Regulations 2001 (as amended). The

relevant landowner consent was obtained and submitted within the planning application

process.

In addition, part of the subject lands not in Aldi’s ownership were owned by Limerick City

and County Council. The Council supported the application and confirmed its agreement to

facilitate access and services on its land. A letter from a Senior Engineer of the Council

accompanied the application, and a further express written consent was submitted at the

Further Information stage. In the circumstances the requirement under Article 22(2)(g) was

satisfied.

Even if there had been any defect in the original consent (which is denied), it was lawfully

cured during the process before the decision was made. The Board and the Planning

Authority had discretion to accept the updated landowner consent. Case law (e.g. Walsh v

An Bord Pleanála [2020] IEHC 282) supports the view that any such procedural deficiency

does not render the application void and that Article 22(2)(g) should be given a purposive

interpretation, which is to prevent the making of frivolous planning applications.

The landowner itself (the Council) did not object at any stage, but instead actively facilitated

the proposed development. The Applicants are strangers to title and lack standing to

challenge the application on a jus tertii basis. The Courts have consistently rejected third-

party challenges to landowner consent in the absence of any dispute by the landowner: see

Walsh and Minoa.

The Applicants' claim that a formal disposal resolution under section 183 of the Planning and

Development Act 2000 was required is incorrect. A section 183 resolution is only required

where a local authority disposes of land. Here, no land was being disposed of; only consent

to development on Council-owned lands was at issue.

The Applicants have failed to show any prejudice arising from the alleged consent issue. The

Board considered the entire application, including all submissions and further information,

and determined the application was valid and complete. The Courts will not quash a

permission for a purely technical breach and/or a harmless error, particularly where no

adverse consequences flow: see Massey (No.2) and Doyle (No.1).

The application was valid, landowner consent was obtained, and the Council’s support was

clear throughout. Any defect, if it existed, was lawfully remedied during the process. The

Applicants have no standing to object, and the Board was entitled to determine the

application.”

44. There is no reality to this ground. A permission shouldn’t generally be quashed for failure

to respect the property rights of a third party, and this case isn’t an exception. It’s different if the

rights concerned are those of an applicant herself. Without that feature, the point is, as the

commission submits, a ius tertii – submissions para. 45:

“… the Applicants seek to raise a claim only properly raised by an actual landowner of land

the subject of a planning application, in a clearly improper manner. In Mohan v Ireland

[2021] 1 IR 293, O’Donnell J described the doctrine of jus tertii as ‘the rule against advancing

claims based on the rights of other’. …”

45. The more elaborate sub-aspects of it, such as the belated complaint about an alleged lack

of a members’ resolution, don’t therefore arise. This isn’t a plausible ground for certiorari.

46. Such an outcome is consistent with the settled caselaw relied on by the opposing parties,

specifically Frascati Estates Ltd v. Walker [1975] I.R. 177; Simons J. in Heather Hill Management

Company CLG v. An Bord Pleanála [2019] IEHC 450 (Unreported, High Court, 21 June 2019);

Balscadden Road SAA Residents Association Ltd v. An Bord Pleanála [2020] IEHC 586 (Unreported,

High Court, 25 November 2025); Holland J. in Heather Hill Management Company CLG v. An Bord

Pleanála & Ors. [2022] IEHC 146 (Unreported, High Court, 16 March 2022) at §65; Minoa Ltd v. An

Bord Pleanála [2024] IEHC 704 (Unreported, High Court, Heslin J., 10 December 2024).

47. I can note here that the commission in its response to the draft judgment wondered whether

the draft judgment should refer to “jus” tertii rather than ius tertii. While the answer to that (even

acknowledging that jus is now more commonplace) is that both are correct, the question was

nonetheless worthwhile if not timely. The ancient Romans had no J, so that letter in the context of

Latin is shockingly new-fangled, coming in as recently as mediaeval times. We say nemo iudex

rather than judex – yet it is the same word. Likewise, when Pontius Pilate cemented his place in

immortality with his quod scripsi (Nietzsche had him in mind when he wrote: „Habe ich noch zu

sagen, daß im ganzen neuen Testament bloß eine einzige Figur vorkommt, die man ehren muß?“ /

Need I still say that in the whole New Testament, there appears but a solitary figure worthy of

honour? (Der Antichrist (1895), §. 46), a judgement people can make their own minds up on), he

wrote Iesus Nazarenus Rex Iudaeorum, giving millennia of artists depicting the scene the

abbreviation INRI, not JNRJ.

48. While we are on the subject of Latin, a subject, I hasten to emphasise, put on the agenda

at this stage of the proceedings by parties’ correspondence rather than by me, it’s hopefully

unnecessary to point out that while Latin and other technical terms aren’t exactly compulsory, they

aren’t prohibited either. Obviously, accessible writing in judgments is welcome, but in the

democratic days of the internet where any term can be looked up in seconds, the use of technical

terms, even in Latin, doesn’t in fact do any great harm. It certainly would be a misunderstanding

to say that technical terms can only be understood by lawyers – technical terms can be understood

by anybody with a Wi-Fi signal. So any argument based on the need to avoid terms that only lawyers

can comprehend is off to a false start. That said, ideally, legal writing such as judgments would be

readable by the reasonably intelligent non-lawyer, bearing in mind that we have to respect the

intelligence of that reader by assuming her willingness to make modest efforts to understand the

legal context and language concerned. I would even go so far as to say that jargon-laden speech

and unnecessary “rules” requiring formal language can act as a barrier, even in some contexts a

class barrier, to wide participation in the legal system. And jargon generally and Latin in particular

can be used to give a veneer of legalism to points that are intellectually quite bankrupt, so critics

are right about that. We are familiar from everyday public affairs (before we even get to Orwell)

that language is often used to manipulate and coerce its addressees and to create fact-free

impressions if not outright falsehoods, rather than to convey information, and let’s not pretend that

doesn’t happen in the legal world too, albeit to a hopefully lesser extent. So one needs to be vigilant

about that, and I acknowledge that critics of jargon are coming from a good place.

49. But like a lot of things, Latin is not either automatically bad or good – it depends how it is

used. Used to obfuscate and befuddle, it is the former; used to convey precise concepts in a well-

understood and time-saving manner, it is the latter. The rule of law is not a concept so precise and

mechanical as to require simple language as an absolute. It is a balance between a number of

concepts, not least precision: the substitution of new, vague and poorly understood terms for

established, precise and well-understood terms is not progress. The rule of law presupposes certain

common understandings – a linguistic war of all against all where everywoman can come up with

her own new terms is something that undermines that. Legal language is the common property of

all actors in the system, so is not exactly suitable for unilateral renegotiation, especially in a

hierarchical system, something that hardly needs to be spelled out in detail. Another value central

to the rule of law is judicial independence, which is internationally recognised as allowing a wide

margin of appreciation in how a judge chooses to write. That is not consistent with there being

some postulated obligation stemming from the rule of law or anything else to write in the most

accessible manner possible. Meeting such demands for change would also involve a fairly major

exhaustion of time and mental energy as well as a tangible loss of freedom of expression, in what is

already a fairly demanding context, and one has to wonder about the cost/benefit ratio in such an

exercise – especially where, as I say, non-legal court participants have complete access to an

explanation of any term in seconds and generally as far as I have seen have no serious problem in

coping with such terms (indeed many of them clearly enjoy doing so). Accessibility is of course

good, but it is not the only good.

50. Those who advocate compulsory informalities and those who advocate compulsory

formalities have one thing in common however – they perhaps understandably misperceive their

own subjective preferences as objective requirements. People can write using their own style but

they shouldn’t demand that others write in that style also. Contra the teacher in Harry Chapin’s

“Flowers are Red”, a better approach, if we are to stick with a floral metaphor, is “百花齊放”/“Let a

hundred flowers bloom” (李汝珍/Li Ruzhen, 鏡花緣/ Flowers in the Mirror (1827)).

51. I think the jury is still out on whether the dumbing-down of legal terms in the UK has been

a success. Many of the old terms were perfectly serviceable, and losing them has irreparably broken

a link with Britain’s own past caselaw as well as with the wider common law world (not that they

considered the latter for a moment, as one could infer by analogy from the approach to Brexit).

British judgments are still fairly dense, abbreviation-heavy and formal as a rule (although there are

exceptions), so the anticipated announcement that they have reached the workers’ paradise stage

of history may have to be postponed for the time being. Or to put it another way, the British

experiment suggests that abolition of Latin or other technical terms may not actually achieve a whole

lot in terms of overall accessibility outcomes – perhaps by reason of its very pointlessness it could

be the perfect signature move for our performative and virtue-signalling times. There might even

be a causative relationship between removal of Latin and the heaviness of judgments – what the

official mind will never understand is the Nietzschean perspective that it is difficulty and colour that

gives a text its readability. Remove all features, all history and all personality, and one ends up with

transatlantic verbiage that might score highly on a plain English algorithm, but which will pass only

with difficulty through glazed eyes into the mind, and will dissipate instantly from there into

nothingness, leaving no trace on the reader other than a further imperceptible descent into passivity

and defeat. Bland bureaucratic prose might be accessible linguistically but it is completely

inaccessible psychologically. Since it’s hard to measure the latter, that metric is simply ignored by

official reformers, even if they were cognitively able to see the problem which obviously they aren’t.

While Latin is of course not necessary to good writing, the intellectual freedom, whether one avails

of it or not, to use Latin or any other reasonable resource is necessary to the creative process from

which good writing emerges. Again that’s something that would never even occur to the reformers

and indeed the whole concept would be incomprehensible to them.

52. If invited to identify superlative legal prose as of right now, my nominee for the greatest

current judicial stylist in the common law world would be Justice Ketanji Brown Jackson of the US

Supreme Court, whose writings combine effortless familiarity with all of the historical, technical and

Latin terms the American legal system has to offer with complete comfort with daringly up-to-date

usages of contemporary English. The two are not in conflict, and her writings are a living

embodiment of the aphorism of Terence (Heauton Timorumenos/ The Self-Tormentor, 165 BCE),

“Homo sum: humani nihil a me alienum puto". People are capable of being embedded in and sharing

the language of contemporary society and at the same time drawing on the richness and depth of

accumulated legal and general knowledge and expertise. Jackson J.’s writings are also enlivened by

a lot of controlled passion, if not anger, but then some might argue that she has a lot to be angry

about.

53. The reasonably intelligent reader, the person for whom I try to write, if I can be allowed to

say that, does not want to be talked down to. She wants to be taken seriously, to be involved in

the business at hand, to be invited in to do a little of the work herself, and she wants to be thought

capable of doing that. She wants to be acknowledged as a complex but also a modern person

capable of a breadth of thought, not as a passive consumer of heavily pre-processed word pellets,

and certainly not as a proletarian whose popular argot is to be mistakenly viewed as second-class.

Insulting her intelligence by attempted oversimplifications or attempted overformalities is something

she will detect a mile off.

54. Good writing speaks to the reader as an equal. Bad writing speaks to her as a charity case.

The concept that the dumbers-down might benefit from acquainting themselves with is “the soft

bigotry of low expectations”, a characteristically self-explanatory formula of George W. Bush's from

2006, drafted by his chief speechwriter Michael Gerson.

55. Ultimately, as in so many things, Johann Wolfgang von Goethe said it best: „‚Wenn wir

sagtest Du,‘ die Menschen nur nehmen, ‚wie sie sind, so machen wir sie schlechter; wenn wir sie

behandeln als wären sie, was sie sein sollten, so bringen wir sie dahin, wohin sie zu bringen

sind‘“(Wilhelm Meisters Lehrjahre, (Berlin, Johann Friedrich Unger, 1795–96)).

56. While it’s so obviously tempting to leave that there, on balance it’s probably better if I rely

on the following translation: “‘If we,’ you said, ‘take people only as they are, we make them worse;

if we treat them as if they were what they ought to be, we bring them to where they ought to be. ’”

Core ground 3 – notice to statutory consultees

57. Core ground 3 is:

“3. The impugned decision is invalid and in breach of the 2001 Regulations as no notice

was given and/or no consideration was given (and/or inadequate reasons were given in

respect thereof) to putting the relevant statutory consultees on notice of the application

pursuant to Article 28(1)(n) of the 2001 Regulations as required in respect of a development

that might have significant effects in relation to nature conservation and/or the Board acted

ultra vires in purporting to put the statutory consultees on notice, further particulars of which

are at Part 2 below.”

58. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant

The planning authority did not notify the Heritage Council or An Taisce despite these bodies

being statutory consultees under Article 28(1)(n) of the 2001 Regulations. The Board

unlawfully applied and/or had regard to Article 28(1)(n) which does not apply to it by putting

these two statutory consultees on notice. The Board erred in having regard to a provision

that does not apply to it and further erred in not refusing the appeal for lack of compliance

by the planning authority with Article 28(1)(n).

Commission

By way of preliminary plea, the Commission notes that the Applicants failed to raise this

issue in their respective appeals to the Commission and are, therefore, precluded from

raising same now. The Applicants seek to get around this by arguing that there was an

autonomous obligation on the Commission to check the PA had notified the relevant parties.

However, there is no autonomous obligation on the Commission to review everything the PA

did upon receipt of the planning application to check that the PA complied with the legal

obligations placed upon it (Art.28 being an obligation on the PA, not the Commission).

Without prejudice thereto, the Commission’s position is that it exercised its discretion to put

the Heritage Council, the Minister for Housing, Local Government and An Taisce on notice of

the appeal and request observations from them under s.131 of the PDA and not under the

PDR as alleged. The Commission denies that any error and/or invalidity attaches to the

Decision in this respect. Without prejudice to the foregoing, even if some technical error is

found to have occurred (which is denied), the notification by the Commission of the relevant

parties is such that the substance of Art.28(1)(n) was ultimately complied with and any such

technical error does not, in the exercise of the Court’s discretion, thereby warrant the grant

of any relief.

State

N/A

Notice Party

Article 28(1)(n) of the 2001 Regulations imposes a discretionary, not a mandatory,

obligation on the Planning Authority to notify bodies such as the Heritage Council and An

Taisce only where it considers the development ‘might have significant effects in relation to

nature conservation.’ In this case, the Planning Authority notified the Development

Applications Unit (DAU) of the Department of Housing, Local Government and Heritage,

which is the principal statutory consultee for nature conservation matters.

The Applicants raised no complaints in their appeal to the Board about an alleged failure on

the part of the planning authority to notify statutory consultees under Article 28(1)(n), which

undermines their locus standi to rely on Core Ground 3.

The Board, on receipt of the appeal, independently reviewed the matter and decided to notify

An Taisce, the Heritage Council, and the Minister under section 131 of the 2000 Act. This

statutory provision gives the Board wide discretionary powers to consult with any person or

body it considers appropriate, during its de novo consideration of an appeal. There was no

defect in the Board’s exercise of this power.

The Board’s notification was clear, lawful, and provided an opportunity for participation in

the appeal process. No submissions were received from the Heritage Council or An Taisce

in response. The Applicants have failed to demonstrate any actual prejudice or material

unfairness arising from the timing or manner of the notifications.

The Board consulted all relevant environmental authorities before making its decision. It

undertook an Appropriate Assessment, having received and reviewed a Natura Impact

Statement submitted by Aldi with the planning application, and reached a reasoned

conclusion that the proposed development would not adversely affect the integrity of any

European site.

The planning authority and the Board each exercised their statutory discretion lawfully in

respect of consultation under Article 28(1)(n) of the Regulations and section 131 of the 2000

act, respectfully. All relevant bodies were notified, and the Applicants have failed to

demonstrate any procedural unfairness, prejudice, or material error. This ground discloses

no basis for judicial intervention: Massey (No.2) and Doyle (No.1).”

59. Article 28(1)(n) of the 2001 regulations provides:

“Where a planning authority receives a planning application, the authority shall, except in

the case of an application in respect of which a notice in accordance with article 26(5) has

been or will be given, send notice in accordance with sub-article (2) as soon as may be after

receipt of the application—

…

(n) where it appears to the authority that the development might have significant effects in

relation to nature conservation—to the Heritage Council, the Minister and An Taisce - the

National Trust for Ireland,”

60. As noted above, the applicant for permission submitted an NIS. So in the absence of

anything to demonstrate that the planning authority rejected the necessity for that, and did so

reasonably and lawfully, thereby negating the possibility of significant effects on conservation which

is implied by the submission of such a statement, Article 28(1)(n) should have been applied in such

a case.

61. Unfortunately the council didn’t do that. The board did however put the consultees on notice

of the appeal under s. 131 of the 2000 Act.

62. The commission objects that this is an esprit d’escalier point which the applicants didn’t raise

before the board, but I don’t need to decide on whether that precludes the argument because it fails

anyway.

63. Even accepting that using s. 131 was a second-best procedure to compliance, that the notice

could have been more extensive, or that further documentation could have been provided, or that a

longer period could have been provided for responses, the consultees had an opportunity in

substance to get involved. The board took in essence the appropriate steps – it exercised its powers

to rectify an omission at first instance. As the commission submits at para. 63:

“… the Commission elected to employ s.131 to put all statutory consultees on notice of the

appeal at its discretion, in effect ensuring that the aim of Art.28(1)(n) was achieved. There

is no statutory restriction which operates to restrict the Commission exercising the discretion

afforded under s.131 in the context of its de novo assessment of applications on appeal and

the decision to do so was without error.”

64. Certiorari shouldn’t be granted on such a basis. The commission makes this point at para.

64 of submissions:

“… the fact that the Commission employed its statutory powers to put on notice the very

parties which the Applicants say should have been put on notice by the PA serves again to

highlight the technical nature of their objection in this regard …”

65. A conclusion to this effect is compatible with the general law that mere technicalities are

not normally a proper basis for the grant of relief: see e.g. Moore v. Dun Laoghaire Rathdown

County Council [2016] IESC 70, [2017] 3 I.R. 42, [2017] 2 I.L.R.M. 21, para. 4.8 (distinguishing a

substance point from “a technicality”). The basic point, as emphasised in previous cases, it is not

appropriate to engage in legalistic over-parsing or micro-analysis of decisions, or of legal instruments

generally, frequently based on semantic querulousness: per Sullivan J. in R (Blewett) v Derbyshire

County Council [2003] EWHC 2775 (Admin), [2004] Env LR 29 at para. 41; R. (Friends of the Earth

Ltd and others) v. Heathrow Airport Ltd [2020] UKSC 52, [2021] 2 All E.R. 967, [2021] P.T.S.R.

190, [2020] 12 WLUK 212, Lord Hodge and Lord Sales SCJJ.; see also Walsh v. Jones Lang Lasalle

Ltd [2017] IESC 38 (Unreported, Supreme Court, 1 June 2017) at para. 47; per O’Donnell C.J.

(Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported,

Supreme Court, 10 May 2023) at para. 37. As stated by Peart J. in G.T. v. Minister for Justice,

Equality and Law Reform, [2007] IEHC 287, [2007] 7 JIC 2708 (Unreported, High Court, 27 July

2007), para. 3, See also A.I.M.Z. v. Refugee Applications Commission & Ors. [2008] IEHC

420, [2008] 11 JIC 0705 (Unreported, High Court, 7 November 2008) at para. 24 per Clarke J.; per

McCarthy J. in S.A. v. Refugee Appeals Tribunal & Anor. [2009] IEHC 383, [2010] 7 JIC 2803

(Unreported, High Court, 28 July 2009), para. 13; per Clark J. in Obuseh v. Minister for Justice,

Equality and Law Reform & Ors. [2010] IEHC 93, [2010] 1 JIC 1404 (Unreported, High Court, 14

January 2010), para. 21; per MacEochaidh J. in Bondo v. Minister for Justice & Ors. [2012] IEHC

454, [2012] 11 JIC 0903 (Unreported, High Court, 9th November 2012), para. 24; per Barr J. in

P.M. v. Refugee Appeals Tribunal [2014] IEHC 497, [2014] 10 JIC 0204 (Unreported, High Court,

2nd October 2014), para. 59; per Faherty J. in O.S. v. Refugee Appeals Tribunal [2015] IEHC 839,

2015 WJSC-HC 25494, [2015] 12 JIC 1505 (Unreported, High Court, 15 December 2015), para. 59;

X.E. v. International Protection Appeals Tribunal [2018] IEHC 402, [2018] 7 JIC 0405 (Unreported,

High Court, Keane J., 4 July 2018); B.D.C. (Nigeria) v. International Protection Appeals Tribunal

[2018] IEHC 460, [2018] 7 JIC 2006 (Unreported, High Court, 20 July 2018), para. 7. In Save Cork

City Community Association CLG v. An Bord Pleanála [2022] IESC 52, [2024] 1 I.R. 205 at 60,

Woulfe J. (Dunne, Charleton, O’Malley and Hogan JJ. concurring) said (without needing to decide

the point) that there was “a great deal of force” in the submission that it would be disproportionate

to quash a decision on the basis of a “technical procedural error”

66. As to whether some other remedy might lie, the problem with even considering declaratory

relief against the council is that they weren’t joined as a respondent. It is in principle permissible

to challenge an error made at first instance, once remedies have been exhausted and the appeal

process has concluded, if there is something specific and stand-alone that occurred at that stage

that warrants declaratory or possibly other relief. But the party that made the error needs to be a

respondent. In the absence of that this point doesn’t arise.

Core ground 1 – material contravention

67. Core ground 1 is:

“1. The decision of the Respondent (‘the Board') of 30th January 2024 (An Bord Pleanála

Ref: 314911-24) (‘the Impugned Decision’) to grant planning permission for a single storey

discount food store and associated works (‘the Proposed Development’) is invalid because

the Proposed Development materially contravenes ‘LCC06’ of the Limerick City and County

Council: Retail Strategy for Limerick-Shannon Metropolitan Area and County Limerick 2022-

2028 and/or failed to properly interpret, apply and have regard to the Retail Planning

Guidelines for Planning Authorities issued by the Department of the Environment,

Community and Local Government in April, 2012, and/or the Board’s conclusions in making

and reaching its Decision contains material errors of fact and law and/or the Board failed to

provide any or any adequate reasons for its decision, further particulars of which are at Part

2 below.”

68. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicants

The Notice Party did not engage with the Applicants who own/operate the Watchhouse Cross

Shopping Centre, which is the District Centre for the area, and therefore wrongly discounted

the possibility of locating in the Watchhouse Cross Shopping Centre. The Notice Party’s

Retail Impact Assessment (RIA) incorrectly concluded pursuant to the Retail Planning

Guidelines for Planning Authorities issued by the Department of the Environment,

Community and Local Government in April, 2012 that an out of town location was justified.

The first Applicant provided information and a drawing to the Board illustrating how the

proposed development could be incorporated into the Watchhouse Cross Shopping Centre.

The Board erred in relying on the Notice Party’s defective RIA and failing to have regard to

the submission of the First Notice Party and/or by failing to give reasons for its conclusion.

The Board further unlawfully granted planning permission in material contravention of

Objective LCC06 if the Limerick City and County Retail Strategy (Appendix 6 of the

Development Plan) and/or Objectives BM 01 and/or M 01 of the Limerick City and County

Development Plan 2022 to 2028 (the ‘CDP’).

Commission

The Commission denies that the Decision was granted unlawfully in material contravention

of Objective LCC06 of the Limerick City and County Retail Strategy (Appendix 6 of the CDP).

Insofar as concerns the Retail Planning Guidelines (‘the Guidelines’), the obligation on the

Commission is to ‘have regard’ to same and it is evident from the Inspector’s Report (‘IR’)

and Commission decision, that the Commission did so. In this respect, the Commission

concluded that the proposed development (‘PD’) was acceptable in principle and consistent

with local and national policy. Objective BM 01 The Bays, Moyross and Objective MASP01

of the CDP identify the site on which the PD was located as an ‘opportunity site’ within the

Moyross Regeneration Area for the purposes of a single new retail unit not exceeding a net

floor space of 1,5000m2 , subject to an RIA.

The Commission was satisfied that the RIA submitted complied with the Guidelines and

further that the Notice Party had adequately demonstrated that there was insufficient

capacity for the PD at the preferred district centre location - the Watchhouse Cross Shopping

Centre – within the CDP. The Commission denies that there were any errors in this regard

and its decision in this respect was adequately reasoned. The thrust of the Applicants’ case

under this Core Ground is a merits-based challenge to the Commission’s assessment of, and

weight given to, the evidence before it and the conclusions it reached on the substantive

planning merits issues. In this respect, and more specifically, the failure of the Notice Party

to consult the Applicants for the purposes of the preparation of the RIA does not comprise a

legal error capable of vitiating the lawfulness of the Commission’s decision in circumstances

where the Applicants have not identified any basis for any mandatory legal obligation for

such consultation.

The Commission notes that the Applicants’ written submissions stray beyond the pleaded

case, insofar as it is alleged that the Commission decision was granted in material

contravention of Objectives BM 01 and/or M 01 of the CDP. There is no such plea contained

within the SOG and the Applicants do not have leave to pursue this ground of challenge.

State

N/A

Notice Party

Core Ground 1 is an impermissible attempt to re-argue the planning merits of the case. The

Applicants are improperly seeking to substitute their planning judgment for that of the

Board, which exercised its expert evaluative discretion in a lawful manner. The Board’s

conclusion reflects a legitimate exercise of expert planning judgment, reviewable only on

irrationality grounds, which do not arise here.

The Applicants’ submissions under Core Ground 1 stray impermissibly beyond the only

contravention of a policy objective actually pleaded, i.e. ‘LCC06’ of the Retail Strategy, to

assert material contravention of a number of other objectives (Objectives MASP01, LCC03,

BM 01 and M 01). Furthermore, the Applicants do not identify any specific error of

interpretation, either by the inspector or the Board, in relation to the Guidelines.

The proposed development does not contravene Objective LCC06 of the Limerick City and

County Retail Strategy, which states that the preferred location for new retail is within

existing town centres ‘where practicable and viable.’ The Inspector accepted, based on Aldi’s

Retail Impact Statement (RIS) and sequential test, that the Watchhouse Cross District

Centre could not accommodate the proposed Aldi store due to lack of suitable, available and

viable space.

The Board was required only to ‘have regard to’ the Retail Planning Guidelines (2012), not

to strictly adhere to them. The Board’s decision expressly records that it did so. The RIS

and appeal response submitted by Aldi, prepared by John Spain Associates, provided a

comprehensive sequential test in accordance with the Guidelines.

Contrary to the Applicants’ claims, there was no unit of 14,000 sq. ft. available within the

District Centre. What the Applicants described were multiple smaller and occupied units,

not a single viable unit. The Inspector accepted Aldi’s evidence that no suitable, available

or viable unit existed within the District Centre.

The Applicants state (at §5 of their submissions) that ‘[T]he crux of this issue is that Aldi

never contacted the Applicants in relation to the availability of retail space at Watchhouse.’

However, the Applicants do not point to any provision of the Guidelines which necessitates

such an approach by a developer.

The Inspector reviewed the updated RIS submitted with Aldi’s response to the appeals,

considered the sequential test, and observed the District Centre firsthand. She noted low

vacancy levels and concluded that the subject site, which is zoned for mixed-use and

specifically identified as an opportunity site for convenience retail, was appropriate. Her

conclusions, adopted by the Board, were reasoned and within her lawful discretion.

The Inspector's report and the Board’s adoption of her findings satisfy the duty under section

34(10) of the Planning and Development Act 2000 to state reasons. The rationale for the

Board’s conclusion is clear, adequate, and legally sufficient under Connelly v An Bord

Pleanála [2021] 2 IR 752.”

69. The pleaded sub-grounds are as follows (emphasis added):

“CORE GROUND 1: The decision of the Respondent (‘the Board') of 30th January 2024 (An

Bord Pleanála Ref: 314911-24) (‘the Impugned Decision’) to grant planning permission for

a single storey discount food store and associated works (‘the Proposed Development’) is

invalid because the Proposed Development materially contravenes ‘LCC06’ of the Limerick

City and County Council: Retail Strategy for Limerick-Shannon Metropolitan Area and County

Limerick 2022-2028 and/or failed to properly interpret, apply and have regard to the Retail

Planning Guidelines for Planning Authorities issued by the Department of the Environment,

Community and Local Government in April, 2012, and/or the Board’s conclusions in making

and reaching its Decision contains material errors of fact and law and/or the Board failed to

provide any or any adequate reasons for its decision.

1. By way of further particulars of the claim, the Applicants, in their submissions to the

Planning Authority and the Board on appeal clearly identified numerous shortcomings with

the Retail Impact Assessment (‘RIA’) conducted by the Developer, including its failure to

comply with the requirements of the Retail Planning Guidelines for Planning Authorities

issued by the Department of the Environment, Community and Local Government in April,

2012, issued pursuant to s. 28 of the 2000 Act (RIA Guidelines). Although this RIA was

significantly revised over the course of the Further Information response and the Developer’s

response to the third-party appeals, the identified shortcomings in the RIA and non-

compliance with the RIA Guidelines were not adequately addressed.

2. The Applicants identified to the Board that the Watchhouse Cross Shopping

Centre (‘the Centre’) was designated a district centre (with District Centre zoning)

located approximately 0.5 km to the south of the site of the Proposed

Development. The District Centre contained at the time an Iceland supermarket, together

with a number of other retail, medical, community and public uses. The Applicants

highlighted and placed clear uncontroverted evidence before the Board the highlighting the

established difficulties in attracting and retaining a supermarket to the Centre and the impact

that any such loss would have on its overall viability and on the wider community. This was

particularly the case given the area’s unique socio-economic situation in the community of

Moyross. In particular it was specifically highlighted to the Board that there was a

suitable 14000 unit available in the Centre for Aldi, with additional office and floor

space available if required. However, the Centre had never been contacted by Aldi

in relation to the determination of availability of retail space for the purposes of the

RIA. The Applicants specifically highlighted to the Board that it [was] simply incorrect

there was no suitable retail space available within the Centre and that this was

the appropriate location by reference to the Limerick City and County Retail

Strategy for Limerick – Shannon Metropolitan Area and County Limerick 2022-

2028 which provides that ‘The preferred location for new retail development where

practicable and viable is within existing Town Centres (including District and Major

Village Centres)’.

The Applicant also highlighted to the Board the obligation on the Developer under the RIA

Guidelines to demonstrate that the Proposed Development would not have a ‘material

adverse impact on the vitality and viability of any existing town centre and in this respect

by virtue of its failure to do so the RIA was in breach of the RIA Guidelines to which the

Board was obliged to have regard to in making the Impugned Decision Pursuant to s.28 of

the 2000 Act.

3. The response from the Developer on these points was that owing to the size of the

Proposed Development ‘it is not viable for this to be located within the Moyross District

Centre… as the required floor space is not available’. The Developer’s response (§4.9)

addressed a submission from Second-Named Applicant that there were 2 vacant units in the

District Centre but did not address the Applicant’s submission that there was vacant

space in the District Centre. The Developer states in relation to the sequential test ‘It is

noted that there is no availability within Watch House Cross shopping…which could

accommodate an Aldi store’.

4. The Board’s Inspector held (§7.14):

‘It is also stated within one of the third-party submissions that there is existing space

currently within the district centre to accommodate a proposal similar to that contained

within this current appeal. This statement has not been adequately backed up with

documentary evidence. The Retail Impact Assessment (page 40 of response to appeal)

states that while the district centre is the preferred location for proposed new retail,

availability does not exist at the Watch House centre currently to accommodate the proposed

development. It further states that there is no suitable available location within the district

centre which could accommodate the proposed store. From my site visit, I did not observe

high levels of vacancy within the centre, most of the units appeared occupied. I also noted

the centre to be quite busy during my site visit, on a Wednesday mid-morning. The first

party in their response state that neither of the two units vacant at the time of preparing

the response were suitable for an Aldi store due to their limited size and that sites adjacent

to the district centre, which may be available are not suitably zoned. The site is considered

by the first party to be the most appropriate for the proposed development, in the context

of current Development Plan policy. I would not disagree with this assertion.’

5. This is not correct. The Applicant’s submissions clearly identified the site, the size

and the location of the available units and indicated that further office and retail space

was available as required. There is no further documentary evidence that could

possibly be reasonably required. Furthermore, it is not for the Applicant to

demonstrate that the unit is suitable. The burden of justification rests on the

Notice Party to demonstrate that the Proposed Development is suitable by reference to the

sequential test and the RIA Guidelines. A critical component of that sequential test is the

identification of suitable units or sites within 1 kilometre. The Notice Party did not do so

and, even when the Applicants made clear in its submission the availability of a suitable site

in the District Centre, this was ignored by the Notice Party in its response. In all the

circumstances the Board failed to properly interpret, apply and have regard to the RIA

Guidelines and failed to have regard to its obligations under s.28 of the 2000 Act.

6. The Board therefore erred in law in concluding that the sequential test had been

carried out correctly and in accordance with the RIA Guidelines as it is based on a critical

factual error. Furthermore, the Board wrongly considered that the Proposed

Development complied with Objective LCC06. The only evidence before the Board was

that there was a suitable unit in the Centre and therefore, at the very least, the Board was

required to consider whether it was practical and viable to locate the Proposed

Development at the site as is the clear policy preference of the Retail Strategy. The

Notice Party failed to identify the unit at the District Centre and the Board failed to consider

whether the proposed development complied with LCC06 based on accurate

information and/or wrongly concluded that the proposed development complied with same.

The Board furthermore took into account irrelevant considerations in relying on the

Inspector’s perception that the District Centre was ‘quite busy’ on a Wednesday

morning and that ‘most of the units’ appeared occupied. This constitutes an

irrelevant consideration in light of the evidence submitted by the Applicant as to

the long-term difficulties it has experienced in maintaining the viability of the

District Centre. Finally, and or in the alternative the Board failed to provide any or any

adequate reasons as to why it preferred the erroneous information submitted by the

Developer or the evidence of the Applicants who is the owner and operator of the Centre

and a unit therein in relation to the availability and suitability of units, the profile of retail

units in the Centre and the documented difficulties in retaining anchor tenants.”

70. To deal with this core ground adequately it is necessary to address a number of headings

regarding procedural and factual context.

The law in relation to material contravention

71. Section 37(2) of the 2000 Act provides:

“(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section

decide to grant a permission even if the proposed development contravenes materially the

development plan relating to the area of the planning authority to whose decision the appeal

relates.

(b) Where a planning authority has decided to refuse permission on the grounds that a

proposed development materially contravenes the development plan, the Board may only

grant permission in accordance with paragraph (a) where it considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not

clearly stated, insofar as the proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to

regional spatial and economic strategy for the area, guidelines under section 28,

policy directives under section 29, the statutory obligations of any local authority in

the area, and any relevant policy of the Government, the Minister or any Minister of

the Government, or

(iv) permission for the proposed development should be granted having regard to

the pattern of development, and permissions granted, in the area since the making

of the development plan.

(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall,

in addition to the requirements of section 34(10), indicate in its decision the main reasons

and considerations for contravening materially the development plan.”

72. Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11

April 2024) is a critical authority on the issue of contravention of the development plan.

73. One initial point is that while Sherwin arose in the context of the SHD procedure, the ratio

clearly relates to plan contraventions generally, based on the fact that it begins with a discussion of

the importance of the development plan, citing authorities relating to regular planning process. That

discussion would have been irrelevant and inappropriate if Sherwin was in some way limited to the

issue of SHD-type restrictions on the power to contravene (such as s. 37(2)(b) of the 2000 Act).

74. Thus, while this is a case under para (a), as opposed to para. (b), it is covered by the ratio

of Sherwin. That is distinct from the situation in Ryanair v. An Bord Pleanála [2025] IEHC 74

(Unreported, High Court, 14 February 2025), where the board did in fact identify a contravention of

the LAP but where the discussion elided the concepts of materiality and justification but not in a way

that affected the substance of the decision. If in this case the commission had identified a

contravention but said it was not material for reasons that were incorrect in terms of materiality but

would have been valid in terms of justification, then there would have been a much closer analogy

to Ryanair, and certiorari would probably not be warranted. Ryanair ultimately is about the principle

that a non-legally-significant taxonomic confusion is not fatal if the decision is robust in substance.

That decision does not support a procedure where there is a much more basic failure to get to grips

with the development plan provision being contravened in the first place.

75. Sherwin identifies a number of important points:

(i) The importance of the development plan is well established: Attorney General

(McGarry) v. Sligo County Council [1991] 1 I.R. 99, [1989] I.L.R.M. 768 (Walsh J.);

Byrne v. Fingal County Council [2001] IEHC 141, [2001] 4 I.R. 565 (McKechnie J.)

(Sherwin paras. 90-92).

(ii) “It is well established that the interpretation of a development plan is

ultimately a matter for the courts. Any misinterpretation of the development

plan by the relevant planning authority is an error of law which goes to jurisdiction.

It is also well established that the development plan is not to be treated as if it were

a piece of primary or secondary legislation emanating from skilled draughtsmen, and

inviting the exceptive canons of construction applicable to such material. Instead,

a development plan falls to be construed in its ordinary meaning as it would be

understood by members of the public without legal training, as well as by developers

and their agents, unless the document, read as a whole, necessarily indicates some

other meaning.” (Sherwin para. 96, emphasis added).

(iii) As regards what is a contravention, “Certain aspects of the plan may have a high

level of specificity. In those cases, it may not be at all difficult to determine whether

what is proposed is in contravention of the plan, and it would only remain to exercise

a judgment as to the materiality of any such contravention. However, at the other

end of the spectrum, it is not uncommon to find objectives in a development plan

which may, to a greater or lesser extent, be properly described as aspirational. Such

objectives may be expressed in general terms. In such cases, a much greater degree

of judgment may need to be exercised as to whether the development proposed

amounts to a material contravention of the development plan.” (Sherwin para. 95

citing Maye v. Sligo Borough Council [2007] IEHC 146, [2007] 4 I.R. 678 (Clarke

J.)).

(iv) “[T]he first question must be the nature of the determination (if any) actually made

by the decision-maker, ‘as to whether or not the proposed application as a

matter of law and fact would materially contravene the development plan’,

(per Costello J. in [South-West Regional Shopping Centre Promotion Association

Limited v. An Bord Pleanála [2016] IEHC 84]), in circumstances where there has

been the required focus by the decision-maker on the specific provision of

the plan allegedly materially contravened. In my opinion that question is the

crucial starting point, before one gets to the questions as to the standard of review

by the court.” (Sherwin para. 105).

(v) Thus where “the details of this planning application, and the materials before the

Inspector and the Board, clearly required a focus by the Board on [a specified]

policy” (Sherwin para. 106), this has the consequence that, even if the material was

“not expressly alleging a material contravention of the development plan in terms”

(Sherwin para. 107), the position is that “[i]n the circumstances it [is] incumbent

on the Inspector to make a determination as to whether or not the proposed

development, as a matter of law and fact, would materially contravene [the

specified] policy” (Sherwin para. 108).

(vi) “the first step in making the required determination was for the Inspector to

consider the text of [the] policy … and to interpret that text to some degree, in

terms of what she understood it to mean. In many cases the interpretation of such

a provision may be clear and even self-evident, but in other cases there may be

some lack of clarity requiring some level of engagement with the text.” (Sherwin

para. 109). “it was necessary for the Inspector to give some indication as to

her understanding of what the test meant, before she moved on to her

application of that test, as so interpreted, to the facts of this planning application.”

(Sherwin para. 110).

(vii) These requirements are not discharged merely by a planning assessment

that permission should be granted. Thus in Sherwin, “opinion as to Block D1

comfortably sitting side by side with existing protected structures, without detriment

to their character, cannot be viewed as an implicit or indirect assessment of

compliance with policy CHC2. It appears from the sentences which followed this

opinion that the opinion is essentially based on one consideration, that structures

from different periods can co-exist within the same land parcel etc, rather than based

on the considerations expressly stipulated in policy CHC2.” (para. 114).

76. We can note also that the test for materiality of a contravention centres on the grounds upon

which a proposed development is being or might reasonably be expected to be opposed by local

interests (Roughan v. Clare County Council (Unreported, High Court, Barron J., 18 December 1996)

as cited in Jennings v. An Bord Pleanála [2023] IEHC 14 (Unreported, High Court, Holland J., 17

February 2023)). That certainly applies here on any view.

Context I – the development plan

77. The development plan (https://www.limerick.ie/council/services/planning-and-

placemaking/development-plan-strategies/limerick-development-plan-0) includes a “Volume 6”

which is described as “Accompanying Strategies”.

78. The first of these is the Retail Strategy for Limerick–Shannon Metropolitan Area and County

Limerick 2022–2028. This includes the following (emphasis added):

“7.3.1.1 General Strategy

General retail planning objectives for the County and Limerick Shannon Metropolitan Area

are:

Objective LCC01: It is an objective of the Council that retail development should support the

achievement of National Planning Framework Objectives NPO 5 to develop cities and towns

of sufficient scale and quality to compete internationally and to be drivers of national and

regional growth, investment and prosperity and NPO 6 to regenerate and rejuvenate cities,

towns and villages of all types and scale as environmental assets, that can accommodate

changing roles and functions, increased residential population and employment.

Objective LCC02: It is an objective of the Council to protect and promote a vibrant retail

sector as an integral part of Limerick City Centre’s economy, that supports investment and

renewal in the core area and enhances its status as the primary retail centre in the region.

Objective LCC03: It is an objective of the Council to ensure that all retail development

permitted accords with the relevant requirements and criteria as established within the Retail

Planning Guidelines for Planning Authorities 2012 and the Retail Strategy for Limerick

Shannon Metropolitan Area and County Limerick 2022-2028.

Objective LCC04: It is an objective of the Council to permit retail development within the

City and Town Centres of a size and scale which is appropriate to the level of the settlement,

including its population, as defined within the retail hierarchy.

Objective LCC05: It is an objective of the Council to promote and protect the core retail

areas of Limerick City Centre and main towns as the preferred locations for retail

development.

Objective LCC06: The preferred location for new retail development where

practicable and viable is within existing Town Centres (including District or Village

Centres).

Objective LCC07: The Council shall promote the utilisation of vacant commercial buildings

in City and Town Centre locations as a preferred location for new retail investment. The

Council shall promote a creative and proactive approach to unit expansion and amalgamation

to address modern retail requirements.

Objective LCC08: It is an objective of the Council to prohibit new retail development if

they would (either by themselves or cumulatively with other developments)

negatively impact the vitality and viability of existing retail centres within the County

and Limerick Shannon Metropolitan Area.

Objective LCC09: When assessing retail planning applications, it will be the objective of the

Council to have regard to the findings of the capacity assessment contained in the Retail

Strategy for the Limerick Shannon Metropolitan Area and County Limerick 2022-2028,

including the ability to counteract expenditure leakage. The onus will be on any applicant

to demonstrate in a Retail Impact Assessment that the proposed floorspace is appropriate,

having regard to the quantum of floorspace required within that specific urban centre or

settlement, in addition to evidencing all other relevant variables, as specified within the

Retail Planning Guidelines.

Objective LCC10: The Council shall resist applications for planning permission which would

result in a net loss of retail floorspace at ground level on primary retail streets within the

core retail area, where this would affect the vitality and viability of these streets. However,

applications for change of use to non-retail commercial/service development for vacant units

shall be considered, where it clearly enhances the vibrancy and attractiveness of the area.

Objective LCC11: The Council will encourage alternative, short or interim measures to

improve the visual appearance of vacant or derelict properties, including the use of attractive

window graphics, shutter covers and hoardings and use for non-retail commercial activity

that is appropriate for street frontage.

Objective LCC12: The Council will encourage the consolidation of other non-retail based

services within Town Centres, utilising existing vacant retail floorspace where necessary.

This will aid in enhancing the vitality of Town Centres, encouraging them to maintain their

role as employment locations in addition to reducing the proportion of vacant floorspace and

recognising the value which non-retail uses can contribute to the local economy, through

the provision of employment and general economic benefit.

Objective LCC13: It is an objective of the Council to introduce measures to improve the

accessibility of and experience of City and Town Centres by developing a pedestrian and

cyclist friendly environment, which improves safety and limits car traffic domination where

possible.

Objective LCC14: In accordance with the Retail Planning Guidelines (2012), there shall be a

presumption against new out-of-town retail warehousing development.

Objective LCC15: The Council shall require that applications for new supermarkets on Local

Centre sites shall be accompanied by a Retail Impact Assessment.

Objective LCC16: Proposals for new supermarket developments in Local/Neighbourhood

Centre sites should support the sustainable upgrade of Local/Neighbourhood Centres and

facilities and demonstrate that they facilitate improved access to public transport and/or

cycling and walking for their catchment in accordance with the Retail Planning Guidelines

(2012).

Objective LCC17: Develop a ‘Shopfront Improvement Scheme’ to improve the design, quality

and coherence of shop signage for all Town Centres, though the provision of guidance and

grant funding enable owners to make improvements to their buildings/shopfronts.

Objective LCC18: Support retailers in developing online service offer, consumer delivery

strategies, collection/distribution hubs and click and collect capacity.

Objective LCC19: To support and accommodate the growth of ‘Click and Collect’ retail

services and grocery home shopping as appropriate.”

79. The plan also includes the following (emphasis added):

“3.4.5.2 The Bays, Moyross

These mixed-use zoned opportunity lands of 1.85ha. are located adjoining The Bays in the

Moyross Regeneration Area. The principle uses shall be for employment creation and the

provision of a broad range of employment opportunities. The vision for development of

these lands will be focused on job creation in a high-quality environment in terms of design

and layout. A deficit of convenience retail floor space has been identified in

Moyross. On this basis, a convenience retail element will be open for consideration, but is

seen as ancillary to the primary use as an employment zone. No residential use will be

permitted in this zone.

Objective BM O1 The Bays, Moyross

It is an objective of the Council to:

a) Facilitate creation of a mixed-use employment zone enhancing a broad range of

employment opportunities for the local community. No residential use shall be permitted in

this zone.

b) Consider provision of a single convenience retail unit, which shall not exceed a

net floor area of 1,500m2 subject to a Retail Impact Assessment.

c) Require the highest quality environment in terms of design and layout. Surface car

parking shall be adequately screened and integrated into the site.

d) Ensure the maximisation of connectivity for pedestrians and cyclists.

e) Ensure open spaces, where proposed, are positioned to provide passive and active

surveillance.”

80. The development plan was adopted in the light of ministerial guidelines on retail which

promote a plan-led approach: https://www.gov.ie/en/department-of-housing-local-government-

and-heritage/publications/retail-planning-guidelines-april-2012-418-mb/.

81. WCSC is the relevant existing district centre. The development site is zoned mixed use.

Context II – the applicants’ submissions

82. The appeals to the board indicated that currently there was 2,000 sq ft of retail available

and potentially 5,000 sq ft of office space amounting to a proposal that there was 7,000 sq ft

available in total. The applicants were to subsequently make submissions suggesting an expanded

floor space going beyond this initial figure (see below).

83. The appeals at p. 12 indicated how WCSC had struggled particularly with retaining anchor

tenants since the shopping centre opened.

84. The applicants’ response of 12 December 2022 stated (emphasis added):

“The Retail Impact Assessment

We note the applicant's third attempt to provide a proper Retail Impact Assessment (RIA).

Such a RIA is required to satisfy minimum policy requirements and also the requirement set

out in the Development Plan that any retail development of this nature on the lands be

subject to an RIA. We consider that the revised RIA is still very deficient and does not satisfy

the required standard of research or analysis necessary for a development of this nature at

this particular location.

We acknowledge that the planning system is not designed to stymie or interfere with normal

retail competition and this is made clear in the Retail Planning Guidelines. The planning

system is designed, however, to oversee, manage and control the proper planning and

sustainable development of an area. The onus in such cases is, therefore, rightly put on the

applicant to prove the case for the development. This is particularly true in a case such as

this in a unique area such as Moyross and in a situation where evidence has been put before

the Board that the District Centre has struggled to survive and where, even without Aldi,

proposed new road conditions will open up the area to outward flows of traffic to Caherdavin.

Since construction, the uptake for available retail space at the Watch House Cross District

Centre has not been fulfilled and some of the retail units have been changed to alternative

short term uses. The lack of widespread vacancies is not, therefore, necessarily a sign that

the centre is strong but more a sign of good management in difficult circumstances. It

should also not be taken as a sign that space is not available if requested.

We have the following concerns with respect to the RIA-

• There is no local research, only reliance on average published data more suitable at

regional and national level than in a very unique area, where population [has] long been

dropping and where road conditions are about to significantly change in the near future. It

is contended that an independent RIA should have been commissioned with a comprehensive

survey/interview of a sample of shoppers in the area so as to determine shopping needs and

patterns. The impact of the new road should also have been extensively researched and

assessed.

• While some effort has been made to provide a sequential test, the testing carried

out is very deficient.

• It is noted that Coonagh Cross is not mentioned in the sequential test - an area that

will be very accessible to Moyross once the new road is in place. There are a number of

vacant and unfinished retail units, together with vacant site that could be explored by Aldi

at this location

• Watch House Cross is detailed as ‘site 1’ in the sequential test. We note that the

applicant concedes in the conclusion relating to site I on page 40 that ‘the District Centre is

the preferred location for the proposed new retail unit’ (our emphasis) but that ‘there are

110 suitable available locations within the District Centre which could accommodate the

proposed Aldi store’

In this regard the Board should note that the management at WHC or its letting agents were

not contacted by Aldi or its representatives in relation to retail space availability in compiling

the RIA.

The management has, however, examined the available space for the purposes of the appeal

and would like the Board to note that there is suitable space available within the

centre. We indicate below one or several options of how a 14,000 sq. foot retail unit could

be accommodated within the shopping centre should the need arise for additional

retail space for the area. Additional office floor space to service such a unit could also

be provided at first floor level if required. The Board will note that this option gives a

spacious layout and a very good location for any anchor tenant with 2 of the existing road

facing units incorporated into the layout. The existing car parking is not affected by the

proposal but it should be noted that there is space within the District Centre site to

supplement this car parking if required.

[drawing provided]

It is not, therefore, true to state that there are no suitable available locations within the

District Centre to accommodate a retail store of this nature.

The Limerick City & County Retail Strategy for Limerick - Shannon Metropolitan Area and

County Limerick 2022-2028 has as its general retail strategy (page 16) that the preferred

location for new retail development, where practicable and viable, is as follows –

…

We have shown above that any reasonable demand for new retail development as identified

in the Strategy can be accommodated within the District Centre and the applicant company

itself concedes in its assessment of site 1 that this is indeed the ‘preferred location’.

The fact is, however, that Aldi prefers to its own stand alone dominant store. This may be

acceptable in certain locations but Moyross is not such a location. What appears to be

happening here is that Aldi either want to create its own stand alone unit with no guarantee

that the enterprise units will ever be built. Alternatively Aldi want to create an alternative

District Centre, surrounding itself with its own selected retail units (it is not clear what the

employment units involve) that would not challenge its retail dominance/offer while not

having to provide any other types of community services that would not provide such a

profitable return. Neither option is to the advantage of the sustainable development of the

area or its regeneration.”

85. What can be noted here is that the replying submissions have doubled to 14,000 sq ft the

provision suggested in the original appeals (7,000 sq ft vacancy of which only 2,000 was retail).

86. The 14,000 sq ft of retail is proposed through redlining an area that includes a current

delivery area. The totally obvious intention was potentially to develop this area – not, as the

developer predictably suggests on affidavit, have shoppers pushing trolleys through an outdoor area

between different parts of the shop. That is not the natural interpretation of the applicants’ proposal.

The commission opportunistically jumped on that bandwagon also, conjuring up hard-pressed

shoppers fighting off rain storms as they traversed between aisles (not a point the inspector or board

ever made but leave that aside). This ludicrous suggestion was somewhat ironic since it is a long-

standing applicants’ fallacy that decisions must be read in the most erroneous way possible in order

to get their order of certiorari. Here, the commission is reading the applicants’ proposal in the most

erroneous way possible in order to dismiss it out of hand. That isn’t a valid technique of

interpretation either.

87. The developer calls the applicants’ proposal “flimsy”, and that isn’t a complaint that totally

lacks merit in the sense that it is not particularly developed. But such criticisms have to be seen in

the context of zero engagement by the developer with WCSC so that the proposal is more in the

nature of an opening bid or broad concept to start the conversation. Demanding a developed

proposal when one has done absolutely nothing to engage, before, during or after that point, isn’t a

particularly compelling complaint and certainly not compelling enough to warrant the applicants’

proposal being rejected as impracticable or unviable without due consideration.

Context III – the inspector’s report

88. The inspector summarises the applicants’ submissions on this issue (emphasis added):

“Connellan and Associates, Planning and Energy Consultants on behalf of Watchhouse Cross

Shopping Centre

• Outlines history of Watch House Cross District Centre/difficulty in keeping anchor

tenants/retail context

• Watch House District Centre designated as a Tier 2, Level 2 centre in operative

Development Plan

• Outlines decrease in population from 1990s and impacts on existing Watch House Shopping

Centre; social/income deprivation with Moyross recognised as the largest social housing

estate in Ireland

• New link road will improve access to retail establishments on Ennis Road- will bring major

change to retail catchment

• Concerns that size and location of proposed development will draw excessively from and

undermine District Centre and its role in retail hierarchy; success of Moyross depends on

viable district centre; space within existing district centre to accommodate proposed

development

• Proposal will not be ancillary to other existing employment

• Concerns regarding RIA and assumptions made therein, questionable data and lack of

sequential testing

• Procedural mater relating to advertising of significant further information”

89. The inspector opens the discussion and analysis with the following:

“Having examined the application details and all other documentation on file, including the

reports of the planning authority and prescribed bodies, all appeal submissions received,

together with further responses and having inspected the site, I consider that the main

issues in this appeal are as follows:

• Principle of proposed development/policy context

• Impacts on vitality/viability of existing district centre

• Other matters”

90. One can comment that compliance with development plan objectives is not specifically

identified and nor are the relevant objectives.

91. The inspector responds to the issue as follows (emphasis added):

“7.9 Impacts on vitality/viability of existing district centre

7.10 One of the primary concerns raised by third parties relates to impacts on the viability

of the existing district centre and the retail impact of the proposed development on existing

retailers within Watchhouse Cross Shopping Centre. Objective LCC15 of the operative

Development Plan states that the Council shall require that applications for new

supermarkets on Local Centre sites be accompanied by a Retail Impact Assessment while

Objective BM 01 states that it is an objective of the Council to… consider the provision of a

single convenience retail unit, which shall not exceed a net floor area of 1,500m2 subject to

a Retail Impact Assessment. A Retail Impact Inspector’s Report Page 29 of 42 ABP-314911-

22 Statement was submitted with the application, updated by means of further information

and further updated in the first party response to the appeal. Notwithstanding the concerns

of the third parties, I am generally satisfied with the information contained therein and

consider it to be in compliance with the Retail Planning Guidelines (2012).

7.11 I highlight to the Board that there is a district centre (with District Centre zoning)

located approximately 0.5 km to the south of the site. It is of relatively recent construction,

a relatively modern addition to the streetscape at this location. The district centre currently

contains an Iceland supermarket, together with a number of other retail, medical,

community and public uses. The third-party appeals question the quantitative retail

need/capacity of the catchment area to accommodate the proposal and questions a number

of the underlying assumptions set out within the RIA, including population assumptions. The

submissions outline previous difficulties in attracting and retaining a supermarket to the

centre and the impact that any such loss would have on its overall viability and on the wider

community. This is stated to be particularly pertinent given the area’s socio-economic

situation. Concerns are also raised that the opening of the new link road will further reduce

footfall within the district centre/Iceland given the greater accessibility that this will provide

to other areas of the city. The first party respond that Moyross is undergoing a period of

regeneration in accordance with local and regional policy (designated as Regeneration Area

as set out in Development Plan and Limerick Shannon MASP), which will add positively to

the area in terms of population and footfall. They further contend that the Retail Strategy

and Development Plan fully considered the zoned district centre lands at Watch House Cross

in the context of this regeneration and considered it appropriate to make provision for

additional convenience retail at Moyross. Furthermore, the Limerick Development Plan

expects a population growth of 30,621 in the Plan period to 2028 with an additional 11,442

households forecast.

7.12 I acknowledge these third-party concerns and note the proximity of the subject site

to the existing district centre. I also acknowledge Objective M 01 Moyross of the operative

Plan which states that it is an objective of the Council to: q) Promote Watchhouse Cross as

the District Centre for the area of Moyross, Kileely, Ballynanty and Parteen in accordance

with the Retail Strategy for the Limerick Shannon Inspector’s Report Page 30 of 42 ABP-

314911-22 Metropolitan Area and County Limerick. There are a number of other objectives

that support the viability of district centres within the city and county.

7.13 The third-party appellants contend that there is an over-concentration of

supermarkets in the area and that additional floorspace is not required given the declining

population of Moyross. Having considered the matter, I note that this opinion is not reflected

in the policies and objectives of the recently adopted Development Plan and associated Retail

Strategy, which have been through the OPR process. The Plan and associated Retail

Strategy is recently adopted and I note that there are multiple provisions and references to

the fact that there is a deficiency in retail floorspace in the Moyross area and further capacity

for same and that the subject site would be an appropriate ‘opportunity site’ for such a use.

I concur with the opinion of the first party that the Retail Strategy and Development Plan

fully considered the zoned district centre lands at Watch House Cross in the context and

considered it appropriate to make provision for additional convenience retail at Moyross.

Nowhere in the many objectives relating to same does it state that such a

convenience retail use should be provided on the site of the existing district centre,

which has a ‘district centre’ zoning in the Development Plan. The Plan explicitly

references the provision of additional retail on the ‘Mixed Use’ zone, with the subject site

identified as an ‘opportunity site’ for same. It is stated that there is a deficit of retail in the

area and therefore it is my opinion, based on the information before me, that the area has

capacity for an additional supermarket without impacting detrimentally on that existing.

Retail competitiveness and choice is welcomed in accordance with national policy. The

matter of existing customers going elsewhere once the new link road is opened is possible

but I am of the opinion that generally people will shop in the stores most convenient to

them. I note the large areas of residential development within the immediate area. I

consider that the RIA demonstrates an adequate justification for the proposed development

and that the proposal will complement existing and permitted retailing provide additional

consumer choice and competition. The RIA also demonstrates that there is capacity for

additional net convenience floorspace in the area and that the proposal will not have an

adverse impact of any significance on the existing retail provision in the catchment area. On

the basis of the analysis before me, I consider that an increase in retail floorspace as

proposed is justified.

7.14 The matter of the lack of submission of a sequential test is responded to by the first

party and they have submitted same as part of response to appeal, based on a 1km radius

from the district centre (see Appendix 1 of first party response to appeal). This notes that

in the context of the Retail Planning Guidelines (RPG), the subject site would constitute an

‘Out of Town Centre’ location and references section 4.2.2 of the Retail Planning Guidelines

in this this regard to provide justification for same. In this regard, it notes the many policies

and objectives of the operative Development Plan which encourage a development of the

nature proposed at this location. In the interests of brevity, I will not reiterate but see above

for same. It is also stated within one of the third-party submissions that there is

existing space currently within the district centre to accommodate a proposal

similar to that contained within this current appeal. This statement has not been

adequately backed up with documentary evidence. The Retail Impact Assessment

(page 40 of response to appeal) states that while the district centre is the preferred location

for proposed new retail, availability does not exist at the Watch House centre currently to

accommodate the proposed development. It further states that there is no suitable available

location within the district centre which could accommodate the proposed store. From my

site visit, I did not observe high levels of vacancy within the centre, most of the units

appeared occupied. I also noted the centre to be quite busy during my site visit, on a

Wednesday mid-morning. The first party in their response state that neither of the two units

vacant at the time of preparing the response were suitable for an Aldi store due to their

limited size and that sites adjacent to the district centre, which may be available are not

suitably zoned. The site is considered by the first party to be the most appropriate for the

proposed development, in the context of current Development Plan policy. I would not

disagree with this assertion.

7.15 Some of the submissions received contend that the proposed use does not facilitate

the creation of a mixed-use employment zone enhancing a broad range of employment

opportunities for the local community, as per Objective BM 01 of the operative Plan. The

planning authority in their response note that planning permission was recently granted for

six commercial/enterprise units (Reg. Ref. 22/567), immediately adjacent to the proposed

development, which will share the access road off the new link road. This will further

enhance the area and will aid in providing mixed-use employment at this location. I also

note the wide variety of mixed-use employment opportunities within the wider area, in

particular within the district centre. I am satisfied in this regard and consider the proposal

to be in compliance with Objective BM 01 of the operative Plan in this regard.”

92. The overall section includes (emphasis added):

“7.19 Conclusion

7.20 I note that the Retail Planning Guidelines espouse, in the context of the sequential

approach, that flexibility and realism apply on the part of both retail developers and planning

authorities, to ensure that the various forms of retailing are developed in the most

appropriate locations. Having regard to all of the above, I am of the opinion that the

applicant has demonstrated compliance with planning policy and I consider that the

proposal is acceptable in terms of its location and retail impact. I noted during my site visit

that this is an area that would benefit from additional facilities, given the extent of existing

residential development in the area. It is an area in need of rejuvenation- one that would

benefit from an attractive development- which would also aid in enhancing the visual

amenity of the area. I consider that the proposal before me would aid in this regeneration

and would provide much needed additional facilities within the area. I am satisfied in this

regard.”

Core issue – lack of consideration of LCC06

93. If one wants to plead material contravention one has to identify what exact provision is being

contravened – the applicants have done that in the form of LCC06. Other provisions relied on in

submissions didn’t seem to be pressed but aren’t pleaded anyway.

94. On any view and leaving aside the issues about other provisions of the plan that could have

provided support for the project if LCC06 was not contravened, the inspector’s analysis of the specific

issue of whether WCSC could accommodate the project was extremely limited even before we get

to the issue of engagement with the development plan.

95. Consistently with Sherwin as noted above, LCC06 can’t be dissolved into an amorphous mass

of planning judgement read “harmoniously” (translation – diluted into peripherality). The

commission’s demand for a “harmonious” reading initially sounds, of course, plausible, sophisticated,

appealing – who wants unreasonable disharmony from applicants when officialdom appears suddenly

and obligingly at one’s shoulder, brandishing a smoother alternative? But on facts such as these,

this skilfully ingenuous plea is a purely rhetorical move. Focusing totally on excerpts that support a

particular result but totally ignoring provisions of the plan that do not provide such support is not a

“harmonious” reading. It is a selective reading.

96. A harmonious reading means finding a reading in which both sets of provisions can have

meaning and effect, not in which one set is rendered irrelevant and redundant to the extent that it

doesn’t need to be even mentioned. I am all in favour of a harmonious reading of any given text,

and such a reading is available here, which is to the effect that additional retail should first be

provided in existing town, district and village centres, but if that is not practicable or viable one can

turn to new sites identified for the purpose. That is the ultimate reason for the insufficiency of the

commission’s argument that there can be no contravention of the plan because of the existence of

plan support for retail development on the development site.

97. The commission condemned the applicants’ points as “legalistic”, but they aren’t legalistic.

It would not have been difficult for the commission to cite LCC06 and apply the test by asking

whether the proposed retail provision in an existing district centre would have been practicable and

viable, not limited to the static condition of the district centre but including if necessary through

further development. The commission didn’t do that and didn’t even attempt to do that – it didn’t

reference the relevant objective LCC06 at all or attempt to engage with it in any way.

98. In the absence of considering how the project could have been accommodated by

development of the existing centre, there would be a completely rigged comparison between a static

current snapshot of an existing centre with no potential development being factored in, and a green-

field site considered on the basis of being completely redeveloped. That is just as defective a

comparison as the more obviously ludicrous one of comparing the green field without any

development to the shopping centre with the benefit of development and asking which is more

suitable for a retail store.

99. The commission’s argument that the “error” if there was an error didn’t matter because the

project was justified on planning grounds misses the point discussed in Sherwin – the plan has to

be engaged with. The fact that the board might have granted permission anyway isn’t decisive.

This is quite different from Ryanair where the board expressly found that permission was justified

notwithstanding a breach of the development plan. Here the breach wasn’t identified at all and

indeed objective LCC06 wasn’t engaged with at all.

100. Applying the law as set out by the Supreme Court in Sherwin here the position is as follows:

(i) “It is well established that the interpretation of a development plan is

ultimately a matter for the courts” (Sherwin para. 96, emphasis added). LCC06

is a clear objective and is not to be “harmoniously” interpreted out of sight merely

because there are other objectives that are capable of supporting the grant of

permission.

(ii) “[T]he first question must be the nature of the determination (if any) actually made

by the decision-maker, ‘as to whether or not the proposed application as a

matter of law and fact would materially contravene the development plan’,

(per Costello J. in [South-West Regional Shopping Centre Promotion Association

Limited v. An Bord Pleanála [2016] IEHC 84, [2016] 2 I.R. 481]), in circumstances

where there has been the required focus by the decision-maker on the specific

provision of the plan allegedly materially contravened. In my opinion that

question is the crucial starting point, before one gets to the questions as to the

standard of review by the court” (Sherwin para. 105, emphasis added). Here there

was no focus on LCC06 or its contents at all so we never even got to the crucial

starting point.

(iii) Thus where “the details of this planning application, and the materials before the

Inspector and the Board, clearly required a focus by the Board on [a specified]

policy” (Sherwin para. 106), this has the consequence that, even if the material was

“not expressly alleging a material contravention of the development plan in terms”

(Sherwin para. 107), the position is that “[i]n the circumstances it [is] incumbent

on the Inspector to make a determination as to whether or not the proposed

development, as a matter of law and fact, would materially contravene [the

specified] policy” (Sherwin para. 108, emphasis added). No such determination

was made here.

(iv) “[T]he first step in making the required determination was for the Inspector to

consider the text of [the] policy … and to interpret that text to some degree, in

terms of what she understood it to mean. In many cases the interpretation of such

a provision may be clear and even self-evident, but in other cases there may be

some lack of clarity requiring some level of engagement with the text.” (Sherwin

para. 109, emphasis added). “[I]t was necessary for the Inspector to give

some indication as to her understanding of what the test meant, before she

moved on to her application of that test, as so interpreted, to the facts of this

planning application” (Sherwin para. 110, emphasis added). No such consideration

was afforded or even attempted here.

(v) These requirements are not discharged merely by a planning assessment

that permission should be granted. Thus in Sherwin, “opinion as to Block D1

comfortably sitting side by side with existing protected structures, without detriment

to their character, cannot be viewed as an implicit or indirect assessment of

compliance with policy CHC2. It appears from the sentences which followed this

opinion that the opinion is essentially based on one consideration, that structures

from different periods can co-exist within the same land parcel etc, rather than based

on the considerations expressly stipulated in policy CHC2” (para. 114). Here, the

fact that there might have been other policy supporting the grant of permission

doesn’t dispense with the necessity to engage with the terms of LCC06.

101. Indeed on one view it is worse than merely not considering the relevant objective – the

inspector positively states:

“Nowhere in the many objectives relating to same does it state that such a convenience

retail use should be provided on the site of the existing district centre, which has a ‘district

centre’ zoning in the Development Plan.”

102. While in a very artificial and semantic sense that could be construed as being literally correct

in the sense that additional retail was envisaged at the development site, the concept that further

retail use should not be provided at the existing district centre not only ignores, but contradicts,

objective LCC06, as a matter of substance:

“The preferred location for new retail development where practicable and viable is within

existing Town Centres (including District or Village Centres).”

103. The fact that the developer referred to LCC06 doesn’t absolve the decision-taker from

engaging with it, and nor does the fact that the board considered other provisions of the plan or the

sequential test in the different context of the ministerial guidelines.

104. One can quibble with the semantics but the core of the inspector’s wording about the lack

of plan provision for retail use on the site of the existing district centre is inconsistent with the core

of the relevant development plan objective. The contradiction reinforces the conclusion one comes

to anyway that the failure to engage with the development plan on such a critical issue must amount

to a basis for certiorari.

105. The foregoing is simply a straightforward application of Sherwin to the facts of the present

case.

Is the affidavit evidence an answer?

106. Some general points to note from existing caselaw in relation to affidavit evidence are that:

(i) In general terms, the validity of a decision is to be viewed through the prism of

the material before the decision-taker at the relevant time, and not with the

benefit of further evidence in hindsight, although there are defined exceptions:

I.S.O.F. v. Minister for Justice, Equality and Law Reform [2010] IEHC 457

(Unreported, High Court, Cooke J., 17 December 2010); Jahangir v. Minister for

Justice and Equality [2018] IEHC 37, [2018] 2 JIC 0102 (Unreported, High Court, 1

February 2018); M.H. (Bangladesh) v. Refugee Appeals Tribunal [2018] IEHC 496,

[2018] 6 JIC 2607 (Unreported, High Court, 26 June 2018); B.D. (Bhutan and Nepal)

v. Minister for Justice and Equality [2018] IEHC 461, [2018] 7 JIC 1709 (Unreported,

High Court, 17 July 2018); A.J.A. (Nigeria) v. International Protection Appeals

Tribunal [2018] IEHC 671, [2018] 11 JIC 1403 (Unreported, High Court, 14

November 2018); O.A. (Nigeria) v. International Protection Appeals Tribunal [2018]

IEHC 661, [2018] 11 JIC 2003 (Unreported, High Court, 20 November 2018); De

Souza v. Minister for Justice and Equality [2019] IEHC 440, [2019] 6 JIC 0407

(Unreported, High Court, 4 June 2019); Ratushnyak v. Minister for Justice and

Equality [2019] IEHC 619 (Unreported, High Court, 16 August 2019) per Keane J.

at paras. 35 to 36; J.W. v. Minister for Justice and Equality [2020] IEHC 500, [2020]

10 JIC 1501 (Unreported, High Court, 15 October 2020); Reid v. An Bord Pleanála

[2021] IEHC 230, [2021] 4 JIC 1204 (Unreported, High Court, 12 April 2021);

Clonres CLG v. An Bord Pleanála & Ors. [2021] IEHC 303, [2021] 5 JIC 0706

(Unreported, High Court, 7 May 2021) at para. 87; Google v. Data Protection

Commission [2024] IEHC 577 (Unreported, High Court, Barr J., 11 October 2024).

(ii) The doctrine that the decision-maker should be given a fair chance to consider any

relevant issue is however flexible enough to allow for certain exceptions, where

someone else has put the issue up or where the issue would be apparent to a

reasonable expert body or otherwise something the decision-taker would be required

to consider autonomously.

(iii) It follows that if the consideration of something isn’t an autonomous obligation, and

if nobody in the process raises that something, then belatedly introducing the

point in judicial review is not generally a plausible or permissible basis for quashing

a decision: North Great Georges Street Preservation Society v. An Bord Pleanála

[2023] IEHC 241 (Unreported, High Court, 15 May 2023), though see exceptions

specified in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230 (Unreported, High

Court, 12 April 2021) – if such exceptions apply then the court can potentially receive

new evidence.

(iv) Where an error is demonstrated by an applicant, the onus shifts to opposing

parties to show that the error is harmless: H.A. v. Minister for Justice [2022] IECA

166, [2022] 7 JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July, 2022) at

para. 48. An onus on a decision-taker in the administrative process (e.g. to conduct

a valid AA) does not convert into an evidential or any burden in the judicial process

to show that the decision is valid (for reasons explained in Sherwin v. An Bord

Pleanála [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported, High Court, 27 January

2023) at para. 85).

(v) Where there is a conflict of admissible evidence, in the absence of cross-examination

then such a conflict must generally be resolved against the party carrying the

onus of proof: RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC

4, [2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273 (Clarke C.J.) (O’Donnell, MacMenamin,

Dunne and Finlay Geoghegan JJ. concurring). That is normally the applicant but in

the case of an opposing party asserting that a demonstrated error is harmless, the

conflict will be resolved against the opposing party.

(vi) That said, while conflict between equally inherently credible averments, with no

cross-examination, is generally resolved against the party carrying the onus of proof,

a court is not always obliged to regard all averments as being equally

credible, or to disregard internal or evident problems with them (see by

analogy the manner in which the Supreme Court considered it was entitled to prefer

an affidavit over even oral evidence in Koulibaly v. Minister for Justice, Equality and

Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court,

Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)). Among the

matters to which regard might be had would be included the failure to explain

patently relevant questions that are clearly within that party’s responsibility (Doorly

v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022) at para.

137). This specific and common sense power of the court to evaluate inherent

defects in evidence remains notwithstanding caselaw on cross-examination such as

RAS Medical or Re Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Unreported,

High Court, Butler J., 8 September 2022). This is consistent by analogy with the

judgment of Hardiman J. in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130,

[2007] 1 I.L.R.M. 350 at para. 95 – the court as finder of fact is “not ... constrained”

to accept “the only account available” even if that account is provided by oral

evidence.

107. As regards Mr Spain’s affidavit on behalf of the developer, it isn’t generally admissible to put

before the court some fact that was central to the decision that could have been put before the

decision-maker. That applies to both sides.

108. Such an affidavit could be admissible on the issue of harmless error but on such an issue, a

developer bears the onus of proof so failure to cross-examine an applicant’s deponents is fatal.

109. Mr Madden for the applicants avers (emphasis added):

“3. Firstly, I note that Mr Spain has not included any undertaking in relation to his

understanding of his obligations to the Court as an independent expert witness. Mr Spain is

not independent and cannot give evidence as to his opinion. All Mr Spain can do is provide

evidence in relation to facts within his own knowledge. I say and I am advised this has the

effect of rendering much of his Affidavit inadmissible and in particular the opinion offered by

Mr Spain at §§21-25 and §§26-28.

4. One of the major issues in the proceedings is whether there was a suitable unit to

meet Aldi’s needs in the Watchhouse Cross Shopping Centre. The Statement of Grounds

states at §2 that the Applicant had identified in its submissions to the Board that a 14,000

sq. foot unit with additional office and floor space as required was available and ‘However,

the Centre had never been contacted by Aldi in relation to the determination of availability

of retail space for the purposes of the RIA.’

5. Mr Spain makes effectively two points in response to this. Firstly, he avers that the

availability of a large retail unit suitable for Aldi was mentioned ‘for the first time’ by the

Applicant in its submission. Secondly, he avers that there is in fact no such large retail unit

available. It is necessary for me to address both issues.

Sequence

6. It is important to recall that Objective BM 01 of the Limerick County Development

Plan 2022-2028 states that it is an objective of the Council to consider the provision of a

single convenience retail unit which shall not exceed a net floor area of 1,500 sq meters,

subject to a Retail Impact Assessment (‘RIA’), within the designated ‘opportunity site’ the

subject matter of the proceedings.

7. Clearly therefore it was imperative that the RIA presented a strong reasoned case

to indicate that the development would not adversely impact on the District Centre

(Watchhouse Cross).

8. John Spain Associates carried out this RIA ‘in various iterations’ (three in total) as

acknowledged in the affidavit.

9. As identified by Mr Spain, the First RIA was submitted in January 2022. The First

Applicant critiqued that RIA and noted several shortfalls in the approach including the

absence of a sequential test. As of the date of the Applicant’s submission in respect of that

RIA Iceland were in situ and the large unit was not available, albeit the RIA was otherwise

replete with errors.

10. The second iteration of the RIA was lodged in reply to a further information request

by the Council and took account of the recently adopted 2022-2028 Limerick Development

Plan. The Applicants were not given a chance to comment on this iteration of the RIA as

Limerick County Council did not ask for new notices indicating that significant information

had been lodged.

11. In October 2022 the Applicants did address that second iteration in its Third Party

appeal to the Board. That appeal noted, in particular, the lack of the required sequential

test.

12. As identified by Mr Spain (§10), the third iteration of the RIA was lodged in response

to the appeal submissions in December 2022 and which identified inter alia the position as

of the visit to the centre in September 2021 including that Iceland was trading and that

there was only two vacant units.

13. However, in response to that third iteration, in a submission to the Board dated 12th

December 2022 the Applicant identified that there was a sufficiently large retail unit available

other than the one occupied by Iceland and/or which could be shortly made available to Aldi

as it was composed of vacant units or units on short leases. However, for reasons that the

Applicant is not privy to it appears that the Board did not send this submission to Aldi for

comment.

14. Although Mr Spain identifies a purported contradiction at §12 as between the

information provided by the Applicants in January 2022 and December 2022 in fact there is

no contradiction. The large retail unit was available in December 2022 and/or could have

readily been made available to Aldi if an approach had been made by Aldi at any point during

the RIA process. Contrary to the suggestion made by Mr Spain the Applicant did not reserve

its position in any way.

15. More to the point it demonstrates a critical issue. Aldi never approached the

Applicants to explore whether it was possible to accommodate an Aldi store in Watchhouse

Cross. If Aldi had done so, as an obvious first step in carrying out an RIA, the Applicants

would have been able to put them on notice that a unit was available, give a view on its

potential availability for Aldi and a time-frame for that unit to become available. Instead,

and remarkably, Aldi carried out no less than three versions of its RIA but the only actual

evidence in relation to the retail offering in Watchhouse Cross provided by Aldi was a walk-

around that occurred in September 2021.

16. Mr Spain respectfully misses the point when he says (§17) ‘Ultimately, the

documentation submitted by the appellants fails to demonstrate the suitability, viability and

availability of these units to accommodate an Aldi discount foodstore’. The obligation to

carry out a comprehensive RIA was Aldi’s and it is, respectfully, clear that this obligation has

not been discharged.

Suitability of the Unit

17. Mr Spain identifies that the proposed large retail unit is not contiguous with the

overall being formed of two units separated by a delivery and bin storage area. This is

correct but is simply one of the options available as identified by Connellan & Associates.

18. Furthermore if Aldi had engaged with the Applicants at any point for the purposes of

preparing its RIA, the Applicants would have had an opportunity to indicate the possibility

of undertaking enabling works in order to modify any of the units to ensure full compliance

with Aldi’s requirements.

19. In other words, it is not an answer for Aldi to simply say that the unit as currently

constituted is not exactly suitable for it in circumstances where it declined to engage with

the Applicants to identify what measures would be necessary to render it suitable.

This is particularly so having regard to the obligation to be flexible in the sequential approach

as required by §4.5 of the Retail Guidelines including a specific obligation to ‘make

reasonable compromises and, if possible, adapt standard retail formats to accommodate

retail schemes on sites which are well located in the context of the sequential approach to

retail development’. There is also a specific obligation to consider ‘disaggregating proposals’

with large units being split into separate sites.

20. Mr Spain therefore respectfully misses the point when he avers that (§18):

‘What can be clearly established is that a single 14,000 square foot unit did not exist at the

date of the inspector’s site visit on 6 December 2023, nor did planning permission exist for

any such unit… There was and is simply no retail unit of that order of floor space that was

or is suitable and available for a proposed supermarket of that size. In accordance with the

Guidelines, a potential site for the provision of retail development must be viable, suitable

and available.’

21. The whole thrust of the Guidelines is that a proposed development has to adopt a

flexible approach and a developer cannot structure its approach such that the

conclusion of its RIA is that a greenfield site is the only solution. That is the precise

opposite of proper planning and the requirements of the Guidelines but appears to be the

approach uniformly adopted by Aldi.

22. Indeed, it appears to the Applicants that Aldi operate the same model for each of

their 160+ sites in Ireland. I have viewed the Aldi website (https://www.aldi.ie/about-

aldi/property) wherein it states as follows:

‘We’re interested in freehold or leasehold town centre or edge-of-town sites that can

accommodate an approximately 20,000sqft store with around 100 parking spaces:

• A circa 1 ½ acre site, but we’ll also consider smaller sites in specific locations

• Main road frontage with good visibility and access

• Located in town centres or edge-of-centre

• We’re happy to acquire freehold and leasehold sites, either individually or in groups’

23. The vast majority of Aldi sites are located in greenfield sites on the outskirts

of towns and cities but they conform to the same model for very large stores. I say

that when the Watchhouse Centre was being developed Aldi were approached to see if they

were interested in anchoring the development but they said that their preferred location for

the Northside of Limerick was to locate on the Ennis Rd. on a standalone site and not be

part of a neighbourhood shopping centre. I also reached out to them several times over the

years when anchor tenants changed or left and each time the response was the same.

24. It is my belief that Aldi never had any intention of locating in Watchhouse

Cross and the RIA (in all its iterations) was designed to arrive at a conclusion

supporting Aldi’s wishes. That would explain why Aldi never approached the

Applicants to see whether a suitable unit was available and Mr Spain conspicuously

fails to provide any explanation for this significant default.”

110. I don’t need to resolve every disagreement of fact (by reason of points (i) and (iv) below,

although if I had to do so I would broadly resolve such disagreements in favour of the applicants on

the basis of points (ii) and (iii) below) because in general terms:

(i) the decision is primarily to be assessed through the lens of what was before the

board at the material time – new facts are not particularly relevant and therefore

not generally admissible;

(ii) if and to the extent that the developer’s evidence is admissible for the purpose of

demonstrating that any error is harmless, the onus to do so lies on the developer so

their failure to cross-examine the applicants’ deponent is fatal (such disputes would

have to be resolved in favour of the applicants, since opposing parties carry the onus

to demonstrate harmlessness of error);

(iii) the developer in any event fails to explain certain matters within its own peculiar

knowledge such as the lack of contact with the applicants – this does not enhance

its evidential position; and

(iv) far more fundamentally, none of the issues on which there are factual disputes affect

the basic point that the inspector did not engage with the relevant objective LCC06

of the development plan.

Other sub-issues

111. Having regard to the foregoing it is not necessary to address the other sub-issues of core

ground 1.

EU law issues

112. Having regard to the foregoing it is also not necessary to decide the EU law issues including

the grounds against the State. Had it been necessary to deal with these, there might arguably have

been a need for a reference to the CJEU but no final decision on that is necessary.

Summary

113. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that an applicant is not permitted to advance a ius tertii in relation

to property rights;

(ii) applying such law to the facts here, the complaint of an invalid application having

regard to the rights of a third party fails;

(iii) it is settled law that legalistic over-parsing and hunting for technicalities is generally

not a proper basis for certiorari;

(iv) applying such law to the facts here, the fact that the council failed to notify statutory

consultees is not a basis for certiorari where the board took all available steps to

rectify that;

(v) it is settled law, applying the Supreme Court decision in Sherwin, that in relation to

issues that fall to be addressed regarding material contravention of a provision of a

development plan, the starting point is that the decision-taker is required to address

the text of the relevant provision;

(vi) applying such law to the facts here, the board failed to do that;

(vii) it is settled law that evidence in judicial review on matters that should have been

put before the decision-taker is generally not permitted, and that exceptions include

proof of harmless error but that in such a situation the onus is on the opposing

parties, bearing in mind that discharge of such onus in the event of a conflict of

evidence requires cross-examination;

(viii) applying such law to the facts here, the developer’s replying evidence on substantive

matters is not generally admissible, and does not prove harmless error in the

absence of cross-examination, reinforced by lack of explanation of matters within its

peculiar knowledge, but more fundamentally is not an answer to the failure by the

board to engage with the relevant objective of the development plan; and

(ix) it is not necessary to address the other issues, bearing in mind that the EU issues

might require a reference to the CJEU if they arose.

114. By way of a ground-by-ground summary of the disposition of the matter:

(i) core ground 1 is upheld to the extent specified (it is not necessary to dispose of all

sub-grounds);

(ii) core grounds 2 and 3 are dismissed; and

(iii) it is not necessary to decide core grounds 4 to 7 (the EU law issues).

Order

115. For the foregoing reasons, it is ordered that:

(i) there be an order of certiorari in terms of relief 1;

(ii) insofar as any claim is not being decided by the court, there be no order on such

claim but without prejudice to make the same or a similar claim in any future

hypothetical proceedings;

(iii) unless any party applies otherwise by written legal submission prior to the mention

date set out below, the foregoing order be perfected forthwith thereafter on the basis

that there be an order for costs (including the costs of written submissions) to the

applicants against the first named respondent in respect of the proceedings, limited

to the costs that would have been incurred had the applicant confined their

proceedings to the issue on which they prevailed, and that any issue as to the extent

of the costs that would have arisen in that circumstance be determined, in default

of agreement, in the legal costs adjudication process; and there be no order as to

costs in favour of or against any other party;

(iv) the order for costs shall include an order for the costs of legal costs adjudication;

(v) pursuant to and/or consistent with Practice Direction HC101, a copy of any written

submissions relied upon be filed at the Central Office within 14 days of the perfection

of the order unless already filed, such copy being required to comply with the

requirements of Practice Direction HC101 and, unless already filed, be entitled

“Written Submissions for Public Release”, and the Written Submissions for Public

Release be made available to members of the public if requested in accordance with

the conditions set out in Practice Direction HC101;

(vi) for the avoidance of doubt, any unsuccessful application to vary any order proposed

in the judgment may give rise to an adverse award of costs (in the case of an award

against a costs-protected applicant, such award may be by way of set-off so as not

to give rise to a positive balance at a level that is prohibitively expensive); and

(vii) the matter be listed on Monday 13 October 2025 to confirm the foregoing.