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High Court Refuses Stay on Consent Order Made in Section 160 Proceedings

Background and relief sought

This case concerned an application under Section 160 of the Planning and Development Act 2000 (PDA) for an injunction to prevent unauthorised use of a premises. The premises in question was Compas Distribution Park (Compas) in Santry, Co Dublin. Compas is owned by Tesco Ireland Limited (Tesco) and leased to Stateline Transport Limited (Stateline). Stateline used Compas to store a large number of shipping containers from early 2020 onwards. These containers were often stacked in towers of 5 or more. This was an unauthorised use.

Fingal County Council (FCC) served an enforcement notice on Tesco for this unauthorised use. Tesco then issued Section 160 proceedings against Stateline seeking to prevent the unauthorised use. When the proceedings came on for hearing in October 2023, Stateline consented to an order being made prohibiting the unauthorised use from continuing.

In return, Tesco indicated that it would consent to a stay on the order for a period of up to 12 months, subject to the High Court’s approval. Stateline sought the stay on the basis that the immediate cessation of the unauthorised use would have “a catastrophic knock-on effect on the freight business generally” and that it required 12 months to acquire a new site with the appropriate planning permission.

Discretionary remedy

In the High Court, Mr Justice Simons held that Section 160 provided the court with discretion as to defer or withhold injunctive relief. He cited the Supreme Court in Meath County Council v Murray to set out the factors relevant to the exercise of this discretion. They include:

  • The severity of the breach - ranging from ‘minor, technical and inconsequential’ up to ‘material, significant and gross’
  • The conduct of the infringer - eg, attitude to planning control and level of engagement with that process
  • The reason for the infringement - ranging from mistake through to indifference and up to ‘culpable disregard’
  • The attitude of the planning authority - whilst important, this will not necessarily be decisive
  • The public interest in upholding integrity of the planning system
  • Other public interest - eg, employment of persons, importance of structure or activity
  • Delay and acquiescence – ie, acceptance without protest
  • Personal circumstances of the infringer, and
  • The consequences of an order being made - eg, financial hardship on infringer or a third party

The Supreme Court decision considered that particular emphasis should be placed on upholding the integrity of the planning system in the public interest. This must be balanced, however, with other relevant factors. These may include that the development was an important infrastructural facility.

The High Court held that such countervailing public interest arguments are not sufficient, in and of themselves, to justify a stay being granted on a Section 160 injunction order. For a stay to be granted, the public interest must be coupled with an additional discretionary factor. For example, the bona fides, ie good faith, of the infringer. A stay will generally only be granted to allow the infringer to regularise the status of the unauthorised development. This can be done by making an application for retention permission or by bringing a development into compliance with existing permission.

The decision

On the facts of this case, Mr Justice Simons found that Stateline had not acted in good faith. Rather, he found that it engaged in a deliberate breach of planning legislation. He rejected Stateline’s public interest argument that the immediate imposition of the injunction order would have a catastrophic effect on the freight industry. In his view, there was a lack of evidence to show that the economic effect of the immediate closure of the facility would be a public interest issue.

He also commented that the reason for Stateline seeking a stay was not to regularise the planning position. Instead, he found it was to allow Stateline time to relocate to an alternative site to carry on its business. He noted that retention permission for the Compas site had been refused by FCC after it had issued an enforcement order regarding the unauthorised use. This decision was appealed to An Bord Pleanála.

In circumstances where the development was wholly unauthorised and where retention permission had been refused, the High Court took a firm stance. It held that it would be loathe to act as some sort of rival planning authority by permitting the unauthorised development to continue unabated for a further 12 month period. Mr Justice Simons held this would not be a proper exercise of the court’s discretion.

Other factors weighing against the granting of the stay included:

  • The seriousness of the breach of planning control
  • The conduct of Stateline in consciously and deliberately flouting planning laws
  • The delay of two years in Stateline applying for retention planning permission, and
  • The attitude of FCC to refuse retention planning permission based on proper planning and environmental considerations.

For these reasons, the High Court refused to exercise its discretion. It granted the injunction order compelling Stateline to cease the unauthorised development with almost immediate effect. This was in the public interest of upholding the integrity of the planning system.

Practical implications

This decision provides a clear statement of the relevant factors that will be considered by the court when asked to grant a stay on a Section 160 injunction order. Mr Justice Simons highlighted the importance of upholding the integrity of the planning system in the public interest.

This decision has since been upheld on the same grounds and reasoning in the Court of Appeal. It concluded that “it is undeniable that with the exception of the claimed public interest and, arguably at best, the attitude of Tesco, all factors weigh heavily against the grant of a stay”.

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

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

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