knowledge | 9 December 2020 |
Ex Parte Planning Injunctions Restraining Trade Won’t Be Granted Lightly
Being forced to close business, even temporarily, has consequences. For this reason, temporary orders to restrain trade cannot be granted lightly. This fact was acknowledged by the High Court on 27 November 2020 in Waterford City and County Council v Centz Retail Holdings Limited & ors.1 In that case, the High Court set aside two orders which, in effect, temporarily restrained retail activity pending full trial. The orders had been granted using the fast-track procedure for interim planning injunctions, so that the business owner was not present in court to oppose them. In this briefing, we will examine this procedure in light of the High Court’s decision.
An injunction is an order of the court requiring a person to refrain from doing, or to do, a particular act. (See our briefing here). Under section 160 of the Planning and Development Act 2000 (as amended) (the “2000 Act”) a planning authority or another person can bring proceedings seeking to restrain or prevent development or activity which is alleged to be unauthorised under the 2000 Act. Where substantive proceedings have been initiated, section 160(3) allows the court to make any interlocutory or interim orders, it considers necessary. For the court to make an interlocutory injunction, the applicant must serve notice on the party against whom relief is sought, at least ten days before the hearing. This can be contrasted with an interim injunction, where there is no such requirement. An interim injunction is an expedited process, made without the other party to the proceedings present (ex parte). To be granted an interim injunction, an applicant is required to fulfil the requirements of Order 103, rule 7 of the Rules of the Superior Courts, and show that the “delay” which would ensue from having to serve notice of the proceedings on the other party could lead to “irreparable or serious mischief”.
Waterford City and County Council v Centz Retail Holdings Limited & ors
In Waterford City and County Council v Centz Retail Holdings Limited & ors, the High Court was asked to review the grant of two interim injunctions to restrain retail activity at three premises in Waterford city centre, Dungarvan, and Tramore. In reviewing the orders, the High Court found that Order 103, rule 7 of the Rules of the Superior Courts had not been brought to the court’s attention in the ex parte application. In addition, just one argument had been made to justify use of the expedited procedure applicable to interim injunctions. A suggestion had been made that there could be a negative impact on existing lawfully operated retail outlets, if retail (which was alleged to be unlawful) was allowed to continue during the Christmas period. Simons J found that this fell well short of the legal test of “irreparable or serious mischief”.
The background to this decision is as follows. Waterford City and County Council (“the planning authority”) sought to restrain what it alleged was the carrying out of unauthorised retail at three premises within its functional area. The planning authority also sought to have what was alleged to be unlawful signage removed. It complained that the respondents were engaged in unauthorised use of their premises as none of these premises had the benefit of a planning permission which permitted the sale of convenience goods (including food, household cleaning products and pet supplies) and non-bulky comparison goods (such as home accessories and toys).
A planning authority official inspected the premises outside Waterford city centre on 16 October 2020 and prepared a report on the same date. A statutory warning letter then issued on 19 October 2020. This indicated that submissions could be made to the planning authority within a period of four weeks. The two other premises were inspected on 4 November 2020, and, again, statutory warning letters were issued. Then, on 19 November 2020, the planning authority made an ex parte application to the High Court for interim injunctions to restrain trade at the three premises, and these were granted by Meenan J.
On 27 November 2020, on an application from the affected businesses, Simons J reviewed this decision (on behalf of the High Court) and decided to set the orders aside, finding that the suggested need for urgency had not met the required standard. In delivering judgment, Simons J considered the general principles which govern the grant of interim, and interlocutory injunctions (as restated by the Supreme Court in Merck Sharp & Dohme Corporation v Clonmel Healthcare Ltd).2 Recognising the difference between private law proceedings and section 160 proceedings,3 he then examined the additional matters to be assessed in applications for interim and interlocutory injunctions under section 160 of the 2000 Act. In determining where the balance of justice lay, he recognised that:
- “… the procedure under section 160 is intended as a summary procedure. In the vast majority of cases, final orders will be made on the basis of affidavit evidence alone (Meath County Council v Murray  IESC 25;  1 IR 189,  to ), and thus such applications come on for full hearing much more rapidly than conventional plenary proceedings. On the facts of the present case, for example, the full hearing will take place on 7 December 2020, that is within three weeks of the proceedings having first been instituted. Such expedition will often obviate the need for interim or interlocutory orders in section 160 proceedings.”
The planning authority had opted to send warning letters (which allowed a four week period for submissions to be made). That “leisurely” process was inconsistent with the suggested urgency. Had the planning authority foregone sending warning letters and directly pursued an injunction, in the usual way, a contested application would have been heard sooner.
The High Court also recognised the serious adverse consequences, which could follow interim injunctions. In this case, the interim injunctions had, in effect, forced the respondents to cease trading, and put their staff of some 125 employees on protective notice. Recognising the severity of these consequences, the High Court stated that orders granted on an ex parte basis should remain the exception. It stated such orders should be restricted to urgent cases, asserting: “it is difficult to understand how such a short period of delay could be said to entail “irreparable or serious mischief” in the context of a retail development.”
The public health restrictions imposed to limit the spread of Covid-19 often treat retail premises differently, where the sale of convenience goods may be “essential”, but other retail is not. It should not be surprising to see controls under planning law and property rights become relevant in that highly competitive context. Last week [link], a major retailer secured orders restraining sale of food, in breach of restrictive covenants in a lease. However, the focus there was clearly on the restrictive covenant in the lease and the contractual arrangements between the parties rather than any planning provision. Where planning law is used to restrain conduct, the threshold for an ex parte interim planning injunction to be granted is high. An applicant needs to demonstrate that the “delay” which would ensue from having to serve notice of the proceedings on the other party could lead to “irreparable or serious mischief”. You can bypass that high threshold where the issue is contested on notice. There is no need to fear delay, where the court can deliver a swift process, like here.
-  IEHC 540.
-  IESC 65.
- In particular with regard to damages.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed. Should you have any queries relating to planning injunctions please contact Brendan Slattery, Michelle Doyle, Ciara Ryan, Eva Barrett or your usual contact in McCann FitzGerald.