A High Court judge has overturned planning approval for a new Aldi supermarket at Moyross in Limerick.
Mr Justice Richard Humphreys upheld a challenge by a shopping centre at Watchhouse Cross, and one of its units, over permission granted to Aldi Stores (Ireland) Limited for a one-storey discount store and associated works at New Road, Moyross.
Permission for the Aldi store, initially granted by Limerick City Council, was upheld by An Coimisiún Pleanála on appeal.
Represented by John Kenny SC, Watchhouse Cross Shopping Centre Ltd (WCSC) and Satander Ltd, operator of a unit there, took a judicial review challenge against the commission and various State parties after their appeal was dismissed. Aldi was a notice party.
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In his recently published judgment, Mr Justice Humphreys noted WCSC opened its centre in the early 2000s in Moyross, a “somewhat deprived” area of Limerick.
An express objective of the area development plan envisaged new retail development should be concentrated in the existing town, district and village centres, “if practicable and viable”.
An express objective was to prohibit new retail development if that, by itself or cumulatively with other developments, would negatively impact the vitality and viability of existing retail centres within the county and Limerick Shannon metropolitan area.
The relevant district centre is an existing shopping centre, WCSC, that is naturally anxious to retain its long-term viability while Aldi is a discount grocery store that generally preferred stand-alone development.
Aldi had not contacted WCSC about retail space availability but WCSC management asked the commission to note there was suitable space for the envisaged Aldi store within the WCSC should the need arise for additional retail space for the area.
It was not therefore true to state there were no suitable available locations within the district centre to accommodate a retail store of the nature proposed.
Aldi’s criticisms of the WCSC proposal as “flimsy” did not totally lack merit in the sense it was not particularly developed but such criticism must be seen in light of “zero engagement” by Aldi with WCSC. The proposal was in the nature of an “opening bid”.
In siding with Aldi, the commission did not refer to the objective of the development plan or expressly address the test specified within that objective, he said.
The commission inspector’s analysis concerning whether WCSC could accommodate the project was “extremely limited”, even before the issue of engagement with the development plan. The commission’s “selective” reading of the plan failed to engage with the relevant objective.
This was a legal error in the approach taken to deciding whether there was material contravention of the plan. The starting point regarding material contravention requires the decision taker must address the text of the relevant provision and the commission failed to do that, he ruled.
