William Orbinson QC LARTPI RTPI NI Planning Law Update 1 December 2016
Planning and judicial review Case summaries 1976-2016 Format Headline summary Facts Grounds of Challenge Findings of the Court Comment Fully indexed, online version and online updates searchable Available now from Planning Online! 45 (includes 12 months access to online version and digital updates)
Key themes from cases in the last 2 years (or so) Promptness and delay a distinction between European and domestic grounds A robust approach to EIA and Habitats Directives The importance of decision-taker properly interpreting policy and understanding the relationship between policies A proper approach to PPS6 A fact-specific approach to Executive Committee approval
Promptness and delay a distinction between European and domestic grounds Promptly and in any event within 3 months, unless exceptional circumstances apply Diocese of Dromore Leave sought months after media screen beside Newry Cathedral approved and after erected, but no neighbour notification no EU grounds - permission quashed by consent Mooreland and Owenvarragh Residents Association 2014 Doyle 2014 Newry Chamber of Commerce and Trade 2015
Mooreland and Owenvarragh Residents Association 2014, Horner J Permission for GAA stadium at Casement Park Leave applied for just within the 3 month period - following Uniplex and Buglife that did not affect European grounds of challenge, but challenges relying on domestic grounds must be made promptly and there was a need for great expedition in planning cases There was an obvious difference between challenges brought by developers, and challenges brought by a residents group struggling to organise and raise funds The undue delay here was not satisfactorily explained, but the case involved issues of public importance and as a residents group the applicants should be given some latitude when deciding whether relief should be withheld because of their lack of promptitude quashed
Doyle 2014, Treacy J Permission for University of Ulster development at Frederick Street, Belfast Leave applied for precisely 3 months after the decision Applicant claimed that she did not know about the decision until 2 months afterwards Leave refused on the domestic grounds for lack of promptness, granted on the European grounds
Newry Chamber of Commerce and Trade 2015, Treacy J Permission for major, out-of-centre, retail-led development in Newry Leave applied for towards the end of the 3 month period, because of difficulties in obtaining disclosure from the Department Leave not challenged on the basis of lack of promptness Notice Party contended at the substantive hearing that the Applicant had been guilty of delay and that relief if any should be refused because of that delay and prejudice to the Notice Party Treacy J found no grounds of challenge had been sustained, but that there had been culpable delay and no satisfactory explanation for that delay
A robust approach to EIA and Habitats Directives River Faughan Anglers Ltd 2014 Mooreland and Owenvarragh Residents Association 2014 Newry Chamber of Commerce and Trade 2015
River Faughan Anglers Ltd 2014, Treacy J Permission to relocate settlement lagoons serving concrete works beside River Faughan SAC Applicant complaints no EIA, no robust Habitats Regulations appropriate assessment, conditions incompatible and did not protect the SAC, implementation would breach existing lagoons and pollute the SAC Held screening out EIA a properly informed judgment, sufficiently robust Habitats Regulations assessment, appropriate regard to ability of mitigation to avoid adverse effect on integrity of SAC, implementation point not addressed No appeal, but complaint to Aarhus that judicial review process prohibitively expensive
Mooreland and Owenvarragh Residents Association 2014, Horner J Permission for new GAA stadium at Casement Park Applicant complaints Assessment of likely traffic impacts grounded on foundation of uplift in capacity from the theoretical but unrealistic capacity of current stadium, failure to apply EIA assessment to additional uses (conference facilities, restaurant and bar facilities), unlawful postponement of assessment of mitigation in relation to asbestos Held grounding EIA on uplift in theoretical but unrealisable capacity of existing facility rather than on proposed capacity of new stadium was fundamentally flawed, no consideration of traffic effects of substantial additional uses (conference/concert/bar/restaurant facilities), postponement of assessment of asbestos mitigation a breach of EIA Regulations as public excluded from the debate on suitable mitigation measures Does the new, reduced application address all these issues?
Newry Chamber of Commerce and Trade 2015, Treacy J Permission for major out of centre retail-led development on the Newry River, leading to Carlingford Lough SAC Applicant complaints failure to consider in-combination effects on integrity of SAC of proposal with 3 other consented retail developments was in breach of Habitats Regulations, failure to assess cumulative effects in breach of EIA Regulations Ex post facto rationalisation/assessment by NIEA Held Habitats Regulations TOLS was adequate, EIA was adequate, JR applicants complaining of EIA breaches must have raised those points during the statutory consultation process
Friends of the Earth 2016, Maguire J Background unauthorised sand and gravel extraction in Lough Neagh Special Protection Area/Ramsar Site/ASSI since the 1930 s, Department issued an Enforcement Notice requiring cessation but no Stop Notice, Shaftesbury Estate and the Sand Traders appealed the Enforcement Notice and were compiling an Environmental Statement Challenge to failure to issue a Stop Notice preventing on-going extraction Order of Mandamus sought to compel issue of Stop Notice Applicant s principal complaints failure to follow a precautionary approach and hence breach of the EIA and Habitats Directives, failure to undertake proper EIA before granting de facto consent
Friends of the Earth 2016, Maguire J Held Nothing to show that the Minister had not considered the issue with care, nor reached a conclusion beyond the remit of his authority The touchstone of expediency provides to the Minister a wide discretion Onus on FOE to show that EU law required service of a Stop Notice FOE claim that by omitting to serve a Stop Notice the Department was in breach of the Directives was difficult to sustain unpersuaded that not serving a Stop Notice was equivalent to granting consent
Friends of the Earth 2016, Maguire J Held Notably, the notice parties did not appeal the EIA Determination [on the deemed planning application] the road the notice parties chose to take was one which involved compliance with the Directives whose processes attached to the appeal proceedings before the PAC. While the Minister/Department did not... put in place a Stop Notice, this option was considered and assessed... the sequence of events... does not foreshadow the conclusion that in fact what was occurring was that the Minister/Department by his decision not to serve a stop notice was in fact granting permission... At least part of the Minister s objective, instead, was to secure a situation in which steps were taken to ensure that the matter would have to be confronted by the notice parties and that the pre-consent assessments would indeed be carried out, consistently with the Directives Therefore, Maguire J followed the ruling of the English CA in Prokopp that failure to take enforcement action did not amount to a granting of consent for EIA, and by extension Habitats Directive, purposes
Friends of the Earth 2016, Maguire J Held the response of the Department/Minister is within the range of lawful responses available. This is not a case where the Minister/Department has been standing by and doing nothing. The service of an Enforcement Notice demonstrates as much but it does not follow from this that there is an inflexible requirement that the next step must be in the form of the issuance of a Stop Notice. Provided the Minister/Department give their mind to the issue and assess it carefully, paying due regard to the objectives of the Directives, as the court believes has been the case in this instance, there is no basis for the court intervening Like other courts before it, this court is un-attracted by the sweeping nature of the applicant s submissions. The applicant has elevated general principle to an inflexible code but general principles should not be treated as a straight-jacket from which there can be no relief... There can... be more than a single response available on the facts of a case like this
Friends of the Earth 2016, Maguire J Held Following Sullivan LJ in Ardagh Glass (CA), once it was accepted that retrospective permission for unauthorised development was permissible in principle, there was no substance in the further suggestion that the planning authority was bound to issue a Stop Notice and not merely an Enforcement Notice, which was sufficient to ensure removal either by the authority or in response to any appeal Just because the damage done could not unlike in Ardagh be undone was not enough to justify setting aside those general principles, nor did the precautionary principle require a Stop Notice to be issued the court has no reason to believe that the PAC will not be alert to it and indeed there is every sign that it is aware of it the PAC can be relied on to be vigilant about securing that the objectives of the Directives in this context are vindicated in a strict but proportionate manner
Importance of the decision-taker properly interpreting policy and understanding the relationship between policies DOE 2014 (PPS21 CTY11 and PPS3 AMP 10) Roberts 2015 (PPS 4 PED 9 and PED 2)
Department of the Environment 2014, Treacy J PAC grant of permission on enforcement appeal for land used as a commercial car park for users of Belfast International Airport, on the basis that it complied with Policy CTY11 of PPS21 and did not need to comply with any other policy Applicant complaints that approach was an error of law in that on a proper interpretation compliance with Policy CTY11 had to be weighed against other material considerations including non-compliance with Policy AMP10 of PPS3 and its need test Held policy interpretation was a matter of law for the Court, PPS21 was not self-contained but directed the decision-taker that its policies would prevail unless there are other overriding policy or material considerations that outweigh them such as Policy AMP10 of PPS3, PAC had not correctly identified the relevant policies and their inter-relationship and had not correctly interpreted and applied the relevant policies
Roberts 2015, O Hara J Permission for Cats Protection League headquarters beside residential property Applicant complaints the Department had misinterpreted policy and cherry-picked policies favouring approval Held the Department had overlooked the introductory paragraph of Policy PED9 of PPS4 which requires proposals to meet the criteria to which the Departmental officer had referred but to do so in addition to the other policy provisions of this statement, Policy PED2 had to be considered to the extent that it required exceptional circumstances before a planning proposal could be permitted beyond those specifically identified, but it was not considered
Proper approach to PPS6: Ulster Architectural Heritage Society 2014 Permission to demolish the Athletic Stores, an unlisted Victorian warehouse in the Belfast City Centre Conservation Area, and to replace it with residential/retail development Applicant s complaints the decision was in breach of PPS6 and the Department had not made sufficient inquiry into whether genuine efforts had been made to retain the building Held From the paper trail leading up to the decision, the Department had not had proper regard to the presumption in favour of retention, which was a very material consideration one which had to be given its full presumptive weight [70], although Against this presumption, it must weigh all other material considerations. The Department enjoys discretion as to the weight to be given to these other considerations [67] Appears to be really just an example of failure to have regard to a material consideration
Fact-specific approach to Executive Committee approval Section 20 of the NI Act 1998 requires decisions to be referred to and agreed by the Executive Committee if they cut across responsibilities of more than one Minister, or if they are significant and/or controversial and clearly outside the scope of the Programme for Government, or if they are determined by the First Minister and Deputy First Minister to be significant and/or controversial and to be agreed by the Committee Newry Chamber of Commerce and Trade 2015 Minister of Enterprise Trade and Investment 2016
Newry Chamber of Commerce and Trade 2015, Treacy J Applicant complained that the Environment Minister had not referred the application to the Executive Committee for discussion and agreement, as being significant and/or controversial Held the application was not (so?) significant or controversial such that it required referral to the Executive Committee, in any event it was not clearly outside the agreed programme for government referred to in para 20 of Strand One of the Belfast Agreement, having job creation potential Does this mean that any planning proposal having job creation potential cannot possibly require to be referred to the Executive Committee, even if it is significant and/or controversial?
Minister of Enterprise Trade and Investment 2016, Treacy J Applicant complained that the Environment Minister had not referred the adoption of BMAP to the Executive Committee for discussion and agreement, as (a) cutting across other Ministers responsibilities, (b) significant and/or controversial and outside the scope of the Programme for Government (c) determined by First Minister and Deputy First Minister to be significant or controversial and to be agreed by the Committee and (d) therefore by Section 28A(10) of the NI Act 1998 the Minister had acted unilaterally and without Ministerial authority Held Treacy J agreed ( a Minister has no power to take a decision in violation of the Ministerial Code relating to the obligation to bring to the attention of the Executive Committee any matter that requires to be considered by it for discussion and agreement by reason of being cross-cutting, significant or controversial ), considering that BMAP a policy dealing with economic and social activity throughout a large part of NI, engages the responsibility of various Ministers in not dissimilar ways
Conclusions Judicial review - a vibrant field of law and practice Increasingly complex Expanding as the economy expands and the development industry begins to thrive again Broad consistency of decisions and themes
Contact details M +44 7860 245324 T +44 2890 426751 E williamorbinson@planning.demon.co.uk W http://www.barofni.com/directory/william-orbinson Legal Associate of the Royal Town Planning Institute Affiliate of the Irish Planning Institute NI Associate of PEBA: The Specialist Bar Association for Planning, the Environment and Local Government Associate Member of the Irish Wind Energy Association/Northern Ireland Renewables Industry Group Affiliate of the Quarry Products Association Northern Ireland