Waterford City and County Council must pay €422,335 in legal costs after a failed Judicial Review over a Dunnes Stores Development in Ferrybank Shopping Centre.
The proposed development would see Dunnes become an anchor store in the shopping centre and the first floor developed into a leisure area.
Management of Waterford Council first appealed the planning permission for this development, and, when this appeal was deemed invalid due to a technicality, the council took a Judicial Review to the High Court.
Waterford Councillors were not involved in the decision, although a survey conducted by The Munster Express found that they were split almost equally, with some strong opinions on either side.
The High Court ruled that Waterford is liable for legal costs including €78,179 for Dunnes Stores and €149,027 for Kilkenny Council. Waterford’s own legal bill is estimated to be €195,129, bringing the total figure to €422,335.
WHAT ACTUALLY HAPPENED
To explain why the Judicial Review was brought, a report prepared by Waterford Council’s Chief Executive Sean McKeown highlights that the Ferrybank Shopping Centre development was based upon planning permission granted in 2006, which had not been acted on and had been granted in a different economic situation.
2006 would have been during the Celtic Tiger, an era of unsustainable lending and spending in Ireland.
The report also explains that the Dunnes Stores development was around 614 square meters of retail floorspace. The Kilkenny County Development plan requires any new retail development larger than 500 metres to include a Retail Impact Assessment—a report examining how large new retail developments will affect existing retail businesses.
McKeown’s report explains that Dunnes did not include this RIA report in their planning application, so Waterford Council made a submission to Kilkenny Council asking that one be included.
This was supported by Kilkenny Council’s Executive Planner, who requested that a report be included. This planner was then overruled by the Senior Planner and planning permission was granted.
As the report explains, Waterford Council appealed this planning permission to An Coimisiún Pleanála, but the appeal was deemed invalid because Kilkenny Council did not send acknowledgment in the required form.
After this, Waterford took legal advice and decided to initiate a Judicial Review through the High Court. It was deemed that Waterford did have substantial enough planning concerns to move forward with a case.
In court on June 11 the judge indicated that he would not find in Waterford’s favour if he were to make a formal judgement. Waterford then decided to withdraw their case on June 22, with proceedings formally concluded on July 6 without a formal judgement on the issues.
Waterford Council acknowledges that they were not successful in persuading the Court.
ON THE GROUND
While the technical explanation of how this dispute rose to the High Court is understandable, the reality on the ground in Ferrybank is that around 7,000 people lack commercial and social facilities. The large, modern, empty shopping centre has the potential to improve their quality of life and could do so almost immediately.
The point has been made that Ferrybank Shopping Centre will damage jobs in Waterford City, which is understandable from the Council’s perspective, but from the view of the workers, they will cross the bridge to work in Ferrybank just as Ferrybank residents cross the bridge to work in Waterford—and the opportunity for more employment and more competition between employers is viewed as a good thing.
Any attempt to delay the long overdue development of the Shopping Centre is largely seen as internal politicking that does not serve the ordinary people trying to make a life and a living.
That said, while many are outraged this judicial review was ever sought, there is a significant, quieter cohort who view it as an inevitable expense given how the matter developed. To those, having the commercial sprawl of Waterford go beyond its own county boundaries is an existential threat to a struggling city centre.
The Local Authority have a responsibility to support and, in some cases, protect their own businesses, in their view the missing Retail Impact Assessment means only time can tell the detrimental effects Ferrybank Shopping Centre may have on Waterford.
Whereas common sense dictates that an empty shopping centre benefits nobody and significant economic opportunities should not be curtailed for the want of another report.
PAYING THE €422,335
In terms of paying the legal bill, the report prepared by the Waterford Council Chief Executive explains that the Council have an annual legal fees budget of €850,000.
What’s remaining of this budget should cover Waterford’s own costs but will not be enough to cover the €227,206 owed for the costs of Kilkenny County Council and Dunnes Stores.
It is reported that paying these costs will not reduce the delivery of any essential day-to-day services. Interestingly, the Council has found savings in its staffing expenditure, including vacancies that have not been filled. These savings will be used to cover the cost of the Judicial Review.
The Council accepts that the judicial review has resulted in significant costs. They maintain the legal action was taken in good faith in the interests of Waterford City.
AARON KENT Funded by the Local Democracy Reporting Scheme
