Two high profile decisions from local Irish planning authorities and An Bord Pleanala (The Planning Board) in relation to the permitted use of properties highlight the importance of completing planning due diligence prior to entering into a lease agreement.
Chopped Up and Out
Freshly Chopped ("Chopped") opened its flagship store at 109 Grafton Street, Dublin in February 2016. The property had long been used as a newsagent and had the relevant permission for use as such. Chopped opened the store as a healthy food take-away outlet without obtaining planning permission for the change of use. In December 2017 Chopped sought retention planning permission from the planning authority in Dublin City Council for, amongst other things, the change of use from newsagent to delicatessen.
In March 2018, the planning authority refused permission on the grounds that it did not fit in with the Dublin City Development Plan which records the principal function of Grafton Street as a Category 1 shopping street nor did it add to the sustainable development of the area.
Chopped appealed the decision to An Bord Pleanala. They provided a detailed statement from Savills about high street leasing and the evolution of retail mix, details of neighbouring shops used for non-retail purposes and also proposed a compromise whereby the store would be provided a temporary permission for a period of 5 years so that they could continue to trade while the planning authority monitored the effect the store had on the area.
In July 2018, An Bord Pleanala refused their appeal and confirmed that if the proposal was granted, it would be contrary to the proper planning and sustainable development of the area.
Latest reports suggest that Chopped now plan to use the store for retail purposes, selling tea-towels and chopping boards, with the sale of food becoming ancillary to the main retail use. This could bring the store within the permitted use for the property but the retail element would have to form a substantial part of the overall floor space.
Dealz or no Dealz
In Fonthill Retail Park, Dublin and Wexford Retail Park, the discount retailer Dealz opened two stores in contravention of the permitted use for the properties, which was for warehouse use and the sale of bulky goods. Dealz applied for a change of use from the relevant planning authorities but were refused.
The concerns raised by both South Dublin County Council and Wexford County Council in refusing permission can be summarised as follows:-
- The retention permission for a retail shop contravenes with the zoning, which in each case was for Retail Park/sale of bulky goods;
- The out of town location coupled with the non-bulky nature of the goods sold by Dealz would divert trade away from existingdesignated town centres in contravention of the regional and national development plans;
- It would set an undesirable precedent for stores of this nature.
Dealz appealed both decisions to An Bord Pleanala unsuccessfully.
What should you do?
Based on both decisions, the clear message from The Planning Board is that retention permission should not be used as a "get out of jail free" card by businesses seeking to retrospectively satisfy planning breaches. The circumstances under which retention permission is available are tightly circumscribed. In cases where there has been a clear and intentional breach of the planning acts, the Authority is likely to apply a strict reading of any surrounding guidelines or development plans to ensure the change of use aligns with them.
In each of the aforementioned cases, Chopped and Dealz could have limited their risk by undertaking planning due diligence. While doing this may take time, money and effort; it may affect the ability of the business to open a store quickly. But on the other hand, it removes any risk of closure or the need to undertake costly litigation against local authorities to protect an investment.
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