McCann, Re Application for Judicial Review

Factual and Procedural Background

This appeal arises from judicial review proceedings initiated by the Appellant challenging the decision of the Respondent Council to grant planning permission to the Developer for a new Further Education College building at a site known as South Lake, Lake Road, within the Borough of Craigavon. The planning permission was granted on 18 January 2019, subject to 46 conditions. The Appellant commenced proceedings on 18 April 2019, asserting multiple grounds challenging the legality of the planning permission, including alleged statutory breaches and incompatibility with planning policies. The High Court dismissed the Appellant’s application, and the appeal to the Court of Appeal concerns whether the Council’s decision was legally sound.

Legal Issues Presented

1. Whether the Council’s decision was based on an erroneous assessment that the proposed development complied with Policy TOU1 of the Craigavon Area Plan 2010 (CAP 2010), thereby rendering the decision legally flawed.
2. Whether the decision erroneously assessed compliance with Policy TOU1 such that it conflicted with Policies COM1 and SETT1 of CAP 2010, affecting its legality.
3. Whether the decision misinterpreted paragraph 6.280 of the Strategic Planning Policy Statement for Northern Ireland (SPPSNI), incorrectly concluding CAP 2010 was not “out of date” and thereby obviating the need for a sequential site assessment.
4. Whether the decision contravened (a) regulation 3(3) of the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995, (b) Policy NH2 of Planning Policy Statement 2 (PPS2), and/or (c) paragraph 6.179 of SPPSNI by failing to adequately investigate otter presence and potential adverse effects on otters at the development site.
5. Whether the decision was unsustainable due to material error of fact or disregard of material factors, specifically concerning anticipated effects on otters.
6. Whether the Environmental Statement (ES) accompanying the application complied with regulation 4 and Part 1(2) of Schedule 4 to the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2015.
7. Whether the Council failed to comply with the Planning (Notification of Council’s Own Applications) Direction 2015 by not notifying the Department for Infrastructure of the application, where required.

Arguments of the Parties

Appellant’s Arguments

• The Council misinterpreted Policy TOU1 by conflating distinct land use designations within the South Lake Zone, erroneously treating education use as compliant with the policy favouring tourism, recreational, and cultural uses.
• The planning permission was granted without a proper sequential site assessment, contrary to the SPPS requirements, as CAP 2010 was out of date in relevant respects.
• The Council failed to make adequate enquiries regarding the presence of otters, a European protected species, and disregarded material evidence indicating potential adverse effects, breaching the Habitats Regulations and planning policies.
• The Environmental Statement inadequately addressed alternative sites and environmental effects, violating the EIA Regulations.
• The Council failed to notify the Department for Infrastructure as required, since the development was significantly contrary to the development plan.

Respondent’s Arguments

• The proposed development was not in conflict with Policy TOU1; the phrase “favourable consideration” in the policy indicates a non-exclusionary preference, allowing education development within Area A of the South Lake Zone.
• The Town Centres Plan (TCP) supplements CAP 2010, forming a package of policies that collectively remain up to date; therefore, a sequential site assessment was not required.
• The Council relied on multiple surveys and expert consultee advice concluding no evidence of otters on the site, fulfilling its statutory and policy duties.
• The Environmental Statement and subsequent addendum adequately addressed the environmental effects of alternative sites, meeting the legal requirements under the EIA Regulations.
• The Council was not required to notify the Department for Infrastructure as the development was not significantly contrary to the development plan.

Developer’s Arguments (Southern Regional College)

• The development proposal was consistent with the planning policy framework and supported by a comprehensive environmental and planning assessment process.
• Surveys and reports demonstrated no evidence of otters on the site, and mitigation measures were proposed to manage any potential environmental impacts.
• The planning application and accompanying documentation complied with statutory requirements, including the EIA Regulations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
City of Edinburgh v Secretary of State for Scotland [1997] 3 PLR 71	Interpretation of “in accordance with” in planning decisions involving development plans.	Guided the court’s understanding of the requirement to assess proposals in light of the whole development plan, including balancing conflicting policies.
Tesco Stores v Dundee City Council [2012] UKSC 13	Planning policy interpretation is a question of law; policies must be interpreted objectively in their proper context.	Underpinned the court’s approach to interpreting CAP 2010 policies and the role of planning officers’ reports.
Mansell v Tunbridge and Malling Borough Council [2017] EWCA Civ 1314	Standard for reviewing planning officers’ reports and the materiality of errors in advice to committees.	Supported the principle that only material misdirection in officers’ reports can render a decision unlawful.
Peel Investment v Secretary of State for Housing, Communities and Local Government [2021] PTSR 298	Interpretation of “out of date” in planning policy context.	Informed the court’s assessment of whether CAP 2010 was “out of date” for the purposes of requiring a sequential site assessment.
National Trust’s Application [2013] NIQB 60	Requirements under Habitats Regulations for appropriate assessment and protection of European protected species.	Guided analysis of whether the Council complied with statutory duties regarding otters and habitat protection.
R (Morge) v Hampshire CC [2011] UKSC 2	Interpretation of Article 12(1)(b) of the Habitats Directive regarding disturbance of protected species.	Applied in assessing the extent of protection owed to otters and the implications for planning decisions.
Brian Holohan and Others v An Bord Pleanala [Case C-461/17]	Interpretation of EIA Directive requirements regarding environmental information on alternatives.	Used to determine the adequacy of the Environmental Statement’s treatment of alternative sites and environmental effects.
Gathercole v Suffolk County Council [2020] EWCA Civ 1179	Application of Wednesbury principle in reviewing EIA compliance.	Supported use of Wednesbury unreasonableness standard in reviewing the Environmental Statement and related assessments.

Court's Reasoning and Analysis

The court undertook a detailed and methodical analysis of the legal and factual issues raised by the appeal, applying established principles of planning law and judicial review.

Regarding Policy TOU1 of CAP 2010, the court emphasized the importance of interpreting planning policies objectively and in their full context, recognizing the policy’s clear division of the South Lake Zone into Areas A and B with distinct land use designations. The court found that the Council and the Senior Planning Officer (SPO) erred by conflating these subzones and misinterpreting the policy to allow education development within Area A, which was designated exclusively for tourism, recreational, and cultural uses. This misinterpretation rendered the Council’s conclusion that the development was “in accordance with” Policy TOU1 legally erroneous.

Consequently, the court held that the development was not in accordance with CAP 2010, which triggered the need for a proper planning balancing exercise considering all material considerations, a step omitted by the Council.

In relation to the Planning (Use Classes) Order 1989 (PUCO), the court acknowledged the SPO’s interpretation linking education and cultural uses but found the classification of the PUCO as a “material consideration” imprecise. Nonetheless, this did not undermine the overall conclusion that the development was not in accordance with Policy TOU1.

The court rejected the Appellant’s argument that CAP 2010 was “out of date” for the purposes of the SPPS sequential test, reasoning that the subsequent Town Centres Plan (TCP) supplemented and updated CAP 2010, filling prior gaps, and that the SPPS’s “town centres first” policy was properly considered by the Council.

On the Habitats Regulations and Policy NH2 ground, the court found significant procedural and substantive deficiencies. It noted that the Extended Phase 1 Habitats Report (Version 3) recommended a full otter survey, reflecting potential otter presence on the site. This advice was not withdrawn and was not addressed by statutory consultees or the SPO’s report. The SPO’s assertion that no otters were present was inaccurate and incomplete. The court held that the Council failed to take into account all material information and breached its statutory and policy duties by granting permission without adequate assessment of likely impacts on otters.

The court further rejected reliance on a planning condition requiring a pre-commencement otter survey as insufficient to cure the legal defect in the decision-making process, affirming that mitigation cannot substitute for lawful pre-decision assessment.

Concerning the Environmental Impact Assessment (EIA) Regulations, the court examined whether the Environmental Statement and its addendum adequately addressed the environmental effects of alternative sites. It found that while the addendum did not elaborate on alternatives’ environmental effects, the information provided was sufficient to meet the legal test under the Wednesbury standard of review, and thus dismissed this ground.

Finally, on the notification ground, the court interpreted the statutory requirement that the Council notify the Department for Infrastructure if the development was “significantly contrary to” the development plan. Given the court’s finding that the development was not in accordance with CAP 2010 and that the departure was more than minimal, it concluded that the Council failed to notify the Department, rendering the grant of permission unlawful on this separate ground.

Holding and Implications

The Court of Appeal ALLOWED the appeal.

The court indicated it would quash the impugned grant of planning permission by way of certiorari, subject to any further submissions from the parties. The decision establishes that the Council’s grant of planning permission was legally unsustainable on multiple grounds including misinterpretation of key local development plan policies, failure to comply with statutory duties under the Habitats Regulations, and failure to observe mandatory notification requirements.

The direct effect is the quashing of the planning permission granted to the Developer. The court emphasized that a fresh decision may be made lawfully, but only following proper legal procedures and correct application of planning policies and statutory duties. No new precedent altering established principles was set; rather, the decision reinforces the primacy of accurate policy interpretation, comprehensive environmental and species protection assessments, and strict adherence to procedural requirements in planning decisions.